Seanad Éireann

Vol. 238 Wednesday, No. 5 25 February 2015

DÍOSPÓIREACHTAÍ PARLAIMINTE PARLIAMENTARY DEBATES Seanad Éireann

TUAIRISC OIFIGIÚIL—Neamhcheartaithe (OFFICIAL REPORT—Unrevised)

Insert Date Here

25/02/2015A00100Business of Seanad ��235

25/02/2015A00300Commencement Matters ��236

25/02/2015A00350Periodic Payment Orders ��236

25/02/2015B00500Home Repossession ��238

25/02/2015C01050Special Educational Needs Staffing ��241

25/02/2015D00700Nursing and Midwifery Board of Ireland ��243

25/02/2015K00100Order of Business ��246

25/02/2015T00100Workplace Relations Bill 2014: Committee Stage (Resumed) ��256

25/02/2015PP01600Health Services: Motion ��313 SEANAD ÉIREANN

Dé Céadaoin, 25 Feabhra 2015

Wednesday, 25 February 2015

Chuaigh an Cathaoirleach i gceannas ar 10.30 a.m.

Machnamh agus Paidir. Reflection and Prayer.

25/02/2015A00100Business of Seanad

25/02/2015A00200An Cathaoirleach: I have received notice from Senator Colm Burke that, on the motion for the Commencement of the House today, he proposes to raise the following matter:

The need for the Minister for Justice and Equality to clarify the current position on the introduction of legislation which will allow the courts to grant periodic payments to those who have suffered injury as a result of medical negligence.

I have also received notice from Senator Thomas Byrne of the following matter:

The need for the Minister for Justice and Equality to ensure repossession cases in the Circuit Court are heard by judges, not county registrars, and further discretion is given to judges.

I have also received notice from Senator Martin Conway of the following matter:

The need for the Minister for Education and Skills to comment on the prohibition on special needs assistants working while participating in the career break scheme where such prohibition prevents them from completing their probation period in order to fully qualify as resource or SNA teachers.

I have also received notice from Senator John Crown of the following matter:

The need for the Minister for Health to urgently outline the contingency plan to prevent an effective shutdown of hospitals in the event of a mass un-registering of nurses by the Nursing and Midwifery Board of Ireland on 2 March.

I have also received notice from Senator Trevor Ó Clochartaigh of the following matter:

An gá atá ann go ndearbhóidh an tAire Ealaíon, Oidhreachta agus Gaeltachta go leanfar le maoiniú a sholáthar do Phléaráca Teoranta chun go mbeidh siad in ann leanúint den obair atá déanta ag an eagraíocht i gConamara le fiche bliain anuas. 235 Seanad Éireann I regard the matters raised by the Senators as suitable for discussion. I have selected the matters raised by Senators Colm Burke, Thomas Byrne, Martin Conway and John Crown and they will be taken now. Senator Trevor Ó Clochartaigh may give notice on another day of the matter he wishes to raise.

25/02/2015A00300Commencement Matters

25/02/2015A00350Periodic Payment Orders

25/02/2015A00400Senator Colm Burke: I welcome the Minister of State. I raise the issue of legislation relating to periodic payment orders in the context of a recent presentation made to the Oireachtas Joint Committee on Health and Children by a parent whose child was severely affected by medical negligence. It was clear at the time of the child’s birth that she had been badly affected by the manner of her delivery but it was nine years before any payment issued to the family. The parent spoke about the fact that the first three to four years of that child’s life were extremely important but that the family did not have access to funding to provide the best possible care for the child. I raise this matter in that context.

In a recent case at the same hospital a settlement was reached at a far earlier stage - approximately three years after the event. At least there was some satisfaction from the parents’ point of view then because they knew that moneys would be available to allow their child to access the kind of services needed at a very young age. This is a very important issue and we should introduce the appropriate legislation as soon as possible.

25/02/2015A00500Minister of State at the Department of Social Protection (Deputy Kevin Humphreys): The Minister for Justice and Equality, Deputy Frances Fitzgerald, regrets that she is unable to be present for this discussion. She would like to thank the Senator for raising this important issue which gives her Department the opportunity to outline the progress made in the introduction of periodic payment orders in cases of catastrophic injury.

It is fair to say there has been much debate in recent years on the appropriateness and ac- curacy of lump sums awarded in cases of catastrophic injury. Assessing damages in such cases is difficult, given the uncertainties involved in making assumptions as to the person’s future circumstances as well as issues such as investment returns and inflation rates. The President of the High Court, Mr. Justice Nicholas Kearns, established a working group on medical negligence and periodic payments in February 2010. The group’s terms of reference included considering and reporting on whether certain categories of damages for catastrophic personal injuries can or should be awarded by way of periodic payments orders, PPOs, as opposed to once-off, lump- sum orders and to make recommendations and provide draft legislation, regulations and rules as may be necessary. In the course of its deliberations the working group extended its examination to all personal injuries, not just medical injuries.

I am sure the Senator is aware that in many other jurisdictions catastrophic injuries cases are compensated by PPOs which avoid the possibility of over or under compensation, as such payments are tied to actual costs of treatment and actual duration of life. This is not the case in Ireland where the lump sum approach to assessing damages in catastrophic injury cases has been the norm. This approach has been criticised in that lump sum payments can lead to situa- 236 25 February 2015 tions where the lump sum is exhausted before the demise of the claimant. Alternatively, if the claimant dies unexpectedly, the remainder of the lump sum becomes, in effect, a windfall for his or her family.

It is the Minister’s belief that the introduction of an appropriate and effective scheme of PPOs will address the issues raised by the working group on medical negligence and periodic payments and will further the interests of justice. She is also of the view that a PPO scheme together with other legislative changes, such as the introduction of pre-action protocols for medical negligence, will have positive impacts on high medical insurance costs. It is vital that any such scheme ensure the continuity of payments to the plaintiff. Where the State has such a liability, security of payment is not an issue. However, in the case of private defendants, usually an insurance company, the matter is more complex. It will require the establishment of a financial infrastructure to ensure continuity of payment, while ensuring the State’s position under any such scheme is well protected.

In 2013 the Government approved the drafting of the heads of a civil liability (amendment) Bill to implement the recommendations contained in the High Court working group report on periodic payments orders in personal injury cases with respect to awards made against the State and agreed that the extension of any such scheme to non-State defendants would be examined further in consultation with the Department of Finance. Subsequent to the Government’s decision, the Department of Finance, through the State Claims Agency, commissioned an actuarial study of this issue. Following receipt of the study in April 2014, the Department of Justice and Equality established an interdepartmental working group to work through the technical aspects of the issue and devise the elements of the periodic payment scheme for the proposed legislation. In particular, the group examined the following issues: financial security mechanisms for PPOs for both State defendants and private defendants; the indexation of PPOs - the group examined the most appropriate indexation measure for inclusion in the legislation; variable or stepped PPOs; a variable PPO would allow parties to return to court to seek a variation of the order in certain circumstances, while a stepped PPO would include at the making of the order a number of stepped payments to cater for specific milestones in a claimant’s life; the extent to which decisions to award PPOs should be mandatory or at the discretion of the court; and the scope of a PPO scheme - whether it would, for example, include both State and non-State defendants. The group has completed its work and made a number of recommendations on these technical issues.

The Minister for Justice and Equality, in conjunction with her colleague, the Minister for Finance, is actively considering the optimum implementation mechanism to ensure the financial security of PPOs. The Minister has informed me that she expects to be able to bring the necessary legislative proposals to the Government in the very near future, with a view to the necessary legislation being published and enacted this year.

25/02/2015B00300Senator Colm Burke: I thank the Minister of State for his extremely comprehensive response. I appreciate very much the work done by him, the Minister and their officials in pre- paring it. The legislation is the way forward and something we should put in place at an early date. I know, however, that the Minister of State cannot give a timeline. However, will we see the draft legislation before the summer recess?

25/02/2015B00400Deputy Kevin Humphreys: On behalf of the Minister, I apologise that she was not able to attend to participate in the debate. Within the answer she has clearly indicated that it will be done by the end of the year. The Government has given an undertaking that it will bring 237 Seanad Éireann forward legislation during that period and fully intends to honour its commitment. It is the Minister’s view that any scheme that introduces PPOs should be extended to cover cases in which the defendant is not the State. Having said this, the Minister believes one must recognise that in the introduction of a scheme covering all defendants we would have to ensure the State would not be exposed to unnecessary financial risk. I am sure the Government would not be thanked if we were to expose the country to financial risk in this way. It is clear from the Min- ister’s answer that she is determined to ensure this matter will be dealt with within the year. I presume, although I have not discussed this with the Minister, the legislation will be presented to the relevant committee first.

25/02/2015B00500Home Repossession

25/02/2015B00600Senator Thomas Byrne: I raise the important issue of repossessions that are happening around the country. There is a huge number of repossession cases, thanks mainly to the enactment of the 2013 conveyancing Bill. It was very unfortunate legislation which I was happy to vote against. As it in place, I want to make sure it will work in some way and give some relief to those who face repossession, particularly of the family home.

Last Monday in County Meath 84 cases were listed to be heard by a very good county registrar but not a judge of the Circuit Court. I have a problem with this, but not out of disrespect for individual country registrars who are very good people. However, in a case in which a property is at risk or a family home is about to be repossesed by the bank, it strikes me as completely wrong that it will be presided over by a country registrar, not a judge. In general, the county registrar’s role relates to procedural and other limited issues which are dealt with as a matter of course. The repossession of a family home is, however, a crisis, catastrophe and disaster for the family concerned.

Article 37 of the Constitution states some judicial powers can be delegated to non-judges, but it talks about the delegation of limited functions and powers, not repossession of the family home. In addition, the conveyancing Act, of which I am so critical, at the very least, requires and specifies that cases should be decided by a judge of the Circuit Court. It is completely wrong, therefore, that judges are not presiding over such cases. If a judge was present, there would be greater formality and the process might be slowed, which would be good because it would give people a chance to keep the family home, which is what we are trying to do. If a judge was to hear a case, it might slow it down and there might be more discretion. From what I can see, county registrars have very little discretion and the lists are regarded as completely routine.

What is frightening is that the people concerned, some of whom are before courts today in Dublin, were before the courts in Trim, County Meath and Dundalk, County Louth last Mon- day and will be in Cork next Monday, are mainly unrepresented. They are not represented by lawyers because they cannot afford them. Perhaps they are ignoring the matter because they are so scared and the issue is so traumatic for them, but they are about to lose the family home, yet this is being seen by the State as an administrative function of the courts and not treated as the catastrophe that it is. County registrars do a good job and I am in no way critical of them individually. Outside Dublin and Cork the county registrar also acts as the sheriff. That means they make an order for repossession and then, if the bank wants to do so, execute it. This is in breach of the concept of a separation of powers. We must call a halt to this practice. The Circuit 238 25 February 2015 Court needs to get its act together. Let us look at the legislation in place, specifically the 2009 Act which was found to be flawed and the 2013 Act which specifically mentioned a judge of the Circuit Court, as it is about time judges heard these cases and had way more discretion. There was this nonsense in the conveyancing Act of referring cases to a personal insolvency practitioner, but that is not enough because judges need to look at all circumstances of a case. There was some discretion used in one case in the High Court last week, but that was a ridiculous case which had continued for 15 years or so. The Government needs to give people a chance and state, “enough is enough; let us try to keep people in the family home; let us try to give them a solution, and let us try to stop the avalanche that is about to hit us.”

25/02/2015B00700Deputy Kevin Humphreys: On behalf of the Minister for Justice and Equality, I thank the Senator for raising this important matter. The Minister regrets that she is unable to be present for the discussion.

As the Senator may be aware, the county registrar is a legal professional officer of the Circuit Court. A person appointed to the role of county registrar is highly qualified and, for example, must have practised for at least eight years as a solicitor or a barrister. The powers of the county registrar are set out in primary legislation as approved by the Oireachtas, including in the Courts and Court Officers Act 1995, as amended. Under primary legislation and court rules, county registrars are empowered to deal with many types of motion. This is intended to maximise the potential of the office, while at the same time facilitating improved efficiencies by freeing the judges of the Circuit Court to deal with the substantive aspects of proceedings. The role of the county registrar in this regard is defined and not a substitute for the constitutional role of a judge.

In regard to possession cases, in very specific circumstances, where an appearance has not been entered or an affidavit setting out a defence has not been filed and delivered, the country registrar may make an order for possession. This power to make an order for possession on foot of a registered charge or a mortgage of unregistered land in these circumstances has been given to the county registrar by primary legislation under section 34 and Schedule 2 to the Courts and Court Officers Act 1995, as amended. The procedures applicable to repossession cases in the Circuit Court are governed by rules of the court. The Senator pointed this out. The county registrar, in addition to the power to make possession orders as outlined above may also make an ancillary order, such as an order of service of the Civil Bill on any other party; adjourn an action to another date; make an order enlarging the time for entry of appearance; give directions and fix time limits for the filing and delivery of any further affidavits by any party or parties; and give any other directions for the preparation of the proceedings for trials.

These proceedings must be commenced by a civil bill. The Senator may wish to note that in 2014 a total of 8,164 civil bills for an order of possession were lodged in the Circuit Court. As the Senator will appreciate, if all of these cases were to heard by a member of the Judiciary it would have significant resource implications for the courts. The specific role of the county registrar in regard to possession cases provides for a speedier and more efficient administration in respect of particular aspects of court business and frees up judicial time for the hearing of the substantive matters. It can also contribute to reduced cost of proceedings.

Where an affidavit setting out a defence has been filed, the county registrar transfers the civil bill, when it is in order for hearing, to the judge’s list at the first opportunity. The county registrar is not empowered to dispose of the matter in these circumstances and it must go before a judge in court. Furthermore, under section 34 of the Court and Court Officers Act 1995, all 239 Seanad Éireann orders of a county registrar are subject to appeal to the Circuit Court. The courts are, subject only to the Constitution and the law, independent in the exercise of their judicial functions and the conduct of any court case is a matter entirely for the presiding judge. The Senator will be aware that this Government has put in place a number of legislative provisions regarding protection of the family home in cases where repossession of the property is being sought, most recently in section 2 of the Land and Conveyancing Law Reform Act 2013. The Government has provided an enhanced range of information and guidance services for mortgage holders, including a dedicated information website, a mortgage arrears information and advice helpline and the provision of independent financial advice for mortgage holders who are being presented with long-term mortgage resolution proposals by their lenders. This advice is provided by qualified accountants drawn from members of the main accountancy institutes in Ireland who have agreed to participate and support this independent service. I would encourage people to avail of this service, where appropriate.

I presume the Senator has encountered many people who are distressed and pressed by the bank but in many cases - I would be interested to know the Senator’s view on this and the number of cases he is dealing with - people have failed to engage. Sometimes the first person they engage with is either a Senator or a Deputy. I urge people to engage with their lenders as much as possible in the first instance. I again thank the Senator for raising the issue and apologise that the Minister could not be here this morning.

25/02/2015C00200Senator Thomas Byrne: I am angry, not with the Minister of State but the Minister for Justice and Equality. The idea that the excuse for county registrars handing out repossession orders and kicking people out of their homes is that there are too many cases and if we got judges involved, the system would not be able to cope. That is effectively what the Minister of State has said - the system could not cope if we got judges to hear all these repossession cases. It is an extraordinary admission by the Government. It is making me angry and I am sure it is making people angry across the country. Some 8,164 civil bills for an order of possession were lodged in court. If all these cases were to be heard by a judge it would have significant resource implications. The Government is saying this. It cannot handle the number of repossession cases, the number of families being kicked out of their homes; therefore, it is asking civil servants - registrars, who are not judges - to do this instead. It is wrong.

The vast majority of people on the repossession list are unrepresented. They do not know about entering an appearance. They do not know what it means. They do not know what delivering a defence means. I know of one person who entered an appearance and thought he had to appear in court the day after he got the summons. It is a document, but how are people meant to know that? To them it is gobbledygook. We need judges hearing these cases and showing sensitivity and we need the Government to admit there is a huge crisis. Above all, we need to keep people in their family homes.

The response by the Minister of State to the matter I have raised is extraordinary. I hope he goes back to the Minister and points this out to her. I cannot believe any politician could stand over what was set out in the script he read.

25/02/2015C00300Deputy Kevin Humphreys: I am also very angry, considering the financial mess we inherited in this country. It is easy for Senator Byrne to stand up here-----

25/02/2015C00400Senator Thomas Byrne: The Government brought in the law allowing repossession.

240 25 February 2015

25/02/2015C00500An Cathaoirleach: The Minister of State to continue, without interruption.

25/02/2015C00600Deputy Kevin Humphreys: I did not interrupt the Senator. It is not nice to be reminded of how Fianna Fáil left this country. I know the Senator gets angry when reminded, but we have had to tidy up this mess. Any order made by a county registrar is subject to appeal to the Circuit Court. There are no plans to amend the current legislation. The Senator showed a little fake anger. It is a pity his fake anger-----

25/02/2015C00700Senator Thomas Byrne: I was working on this issue before the Minister of State was ever in these Houses.

25/02/2015C00800Deputy Kevin Humphreys: It is a pity his anger was not there when Fianna Fáil was bankrupting the country.

25/02/2015C00900Senator Thomas Byrne: I wrote a report on this in 2009, before the Minister of State was ever heard of.

25/02/2015C01050Special Educational Needs Staffing

25/02/2015C01100An Cathaoirleach: I welcome the Minister of State at the Department of Education and Skills, Deputy Damien English.

25/02/2015C01200Senator Martin Conway: I welcome the Minister of State back to the House.

This issue was brought to my attention by a constituent of mine who, to be fair, has engaged in further education in order to better herself, her prospects, her opportunities and her contribution to society. She finds herself caught between a rock and a hard place in terms of the existing career break structures. She is currently employed as a special needs assistant, SNA, in a school in County Clare and wishes to finalise her degree. Unfortunately, were she to do what is required in that regard she would have to take an unpaid career break and, more worryingly, would most likely have to resign her position.

I am asking for the relevant circular dealing with this kind of issue to be interpreted in a flexible manner. Each situation is unique. As a society, a state, a Department and a Minister, we need to equip people to further their education. When people show good faith in doing so, exceptions can and should be made in certain circumstances. The criteria should be good faith and goodwill towards somebody who demonstrates clearly that they have engaged in the education system in order to better themselves and improve their skillset. Once that is demonstrated, the Government and the Department of Education and Skills should be working with people in a positive manner to resolve problems they may find that the system, through bureaucratic necessities, has created. I want to see a positive disposition from the Department, where it will look at an individual case in its totality. Where bureaucracy is becoming an impediment to somebody bettering themselves, that bureaucracy should be looked at in a looser fashion, whereby the individual concerned would be able to finish her studies without it having a nega- tive impact on her present employment. Who would give up a job, with the security that brings, to take a leap into the unknown? Although this person will be better qualified when she has finished her degree, she will not necessarily get a job. We all know that one requires a job to live and to play an active role in society. It is a complex and difficult situation, but I hope the Minister might be able to identify some flexibility so that this person will be able to achieve her

241 Seanad Éireann goals.

25/02/2015C01300Minister of State at the Department of Education and Skills (Deputy Damien Eng- lish): I thank the Senator for raising this matter as it provides me with the opportunity to outline the position on the career break scheme for special needs assistants in recognised primary and post-primary schools.

Special needs assistants, SNAs, are recruited specifically to assist in the care of pupils with disabilities in an educational context. They may be appointed to a special school or a main- stream school to assist school authorities in making suitable provision for a pupil or pupils with special care needs arising from a disability. The first priority is that the care needs of the children are met on an ongoing basis during the school year.

In June 2012, my Department, in conjunction with the school management bodies and the relevant trade unions, agreed a career break scheme for SNAs in recognised primary and post-primary schools, the provisions for which are contained in Circular 22/2012. 11 o’clock The scope and objective of the scheme is for employers, wherever possible, to facilitate applicants to take time off to engage in, for example, personal development; education, including teacher training; public representation; child care-dependant care; and self-employment. The scheme is not designed to cater for those seeking to take up other paid positions in schools.

Each employer, in consultation with SNA staff, shall develop and maintain a policy statement specific to the needs of the school in respect of the approval of career breaks. In drawing up this policy, the welfare and educational needs of the pupils shall take precedence over all other considerations and, while taking account of the objectives of the scheme, shall have due regard to the capacity of the school to meet its obligations to its pupils.

In the public service and Civil Service, employees are precluded from taking up employment in another Department or a body under the Government’s aegis while on career break. In a similar way, an SNA on a career break is precluded from taking up employment in a school. I thank the Senator for raising the issue, but I do not have the details of the specific case. If he wants to give them to me, I will examine them to determine whether we can give any advice or direction. As he knows, the circular was agreed with the unions. I do not know whether the Senator’s client is engaged with them, but the rule is the same across the board for everyone. It is a career break, not the opportunity to fill another position in the public service.

25/02/2015D00200Senator Martin Conway: The issue is the definition of “career break”. Sometimes, people take career breaks to develop their skill sets. While I understand to a degree the logic of the current position, flexibility should be considered in certain cases. To be frank, I do not know whether the lady in question has engaged with the unions, but I will recommend that she do so. I will get my office to e-mail the details to the Minister of State’s office. Perhaps he might be able to identify a resolution to the impasse for this unfortunate lady.

25/02/2015D00300Deputy Damien English: I will certainly examine the details to determine whether there is any advice that my Department can give. The Senator will appreciate that I do not know the case, but the logic is that one should not take a career break from the public sector to fill another position in the public sector. I am not sure if this is exactly what is at issue in the Senator’s client’s case, but that is how it seems. 242 25/02/2015D00400Senator Martin Conway: I know. 25 February 2015

25/02/2015D00500Deputy Damien English: The scheme is right. It would not make much sense to fill a job in the public sector while on career break and holding the other job. Perhaps there is more in the story, as I am not familiar with it. By all means, I would love to see the details and go through the case. If we can give any advice or direction, we will do so.

25/02/2015D00600Senator Martin Conway: Gabhaim buíochas leis an Aire Stáit.

25/02/2015D00700Nursing and Midwifery Board of Ireland

25/02/2015D00800An Cathaoirleach: I welcome the Minister for Health, Deputy Leo Varadkar.

25/02/2015D00900Senator John Crown: I am sorry if I have delayed the Minister. As he knows, we have a professional relationship as peers in this House, but in my day job I work for him. I was a little tied up this morning, delaying my getting here.

What are the contingency plans of the Department and the HSE in the event of the apocalyp- tic scenario of the great majority of the nurses in the country finding themselves unregistered in approximately six weeks time coming to pass? Without boring the Minister with details with which he is familiar and that he has responsibly been trying to deal with, the nurses feel aggrieved that their registration board has recently asked them for a 50% increase in their registration fees, amounting to an 80% increase in the registration fee over two fee cycles. The nurses feel aggrieved because they correctly believe that they have suffered disproportionately among their peers the ravages of the recession, both in economic, take-home pay terms and in quality of work terms. They have been asked and risen to the task bravely of stepping up and taking on an increased burden in what the Minister honestly admitted recently was a health service that had been subjected to a cycle of cuts that under his stewardship has now thankfully come to an end. However, the reality is that, during that time, nurses saw their salaries decrease, their workload increase, a failure to replace nurses due to embargoes and the same tax and USC increases and water and housing charges that everyone faced. Their hard question concerns what they have been getting in return for the increased registration fee. The representations that I have received from many nurses were to the effect that they have not felt that the board has given them good value for the fee. I will not go into details or personalise the matter, but the board has had quite a few expenses that the nurses find difficult to understand, for example, public relations costs and travel costs, which I am sure were undertaken for entirely legitimate business by the board. The nurses’ sense is that the austerity has not been well spread.

Under instruction from their organisation and with a high degree of loyalty to same, they have indicated that they will not pay the increased fee, but will instead pay last year’s fee, which would have the effect of finding the overwhelming number of nurses unregistered by their board by some date in early April. I hope that this will not come to pass, but I would be grateful to know whether there has been contingency planning. I thank the Minister for attending.

25/02/2015D01000Minister for Health (Deputy Leo Varadkar): The Senator did not hold me up, as I have just come from the Dáil. I am the full-time parliamentary spokesperson for the HSE on Wednesday; therefore, I will return to the Dáil and the Seanad at least once more today.

25/02/2015D01100Senator John Crown: I thank the Minister.

25/02/2015D01200Deputy Leo Varadkar: I thank the Senator for raising this matter. As he may be aware,

243 Seanad Éireann the Nursing and Midwifery Board of Ireland, NMBI, voted on 17 September 2014 to increase the annual retention fee of each registered nurse or midwife to €150 from €100. The annual retention fee in 2013 was €88. The registration fee is set by the NMBI, which is a self-funding organisation. I recognise that the board must meet its obligations within the financial resources available to it. At the same time, this demands that obligations are met on the most economic basis possible and all planned expenditure can be demonstrated as necessary.

It was made clear on the enactment of the Nurses and Midwives Act 2011 that the board would continue to be self-funding and needed to plan and cost how it would fulfil its legal obligations. Following detailed negotiations with the executive and board members in 2013, it was agreed in October 2013 that an initial one-off sum of €1.6 million would be granted by the Department to the board to cover its 2013-14 costs, but that the board would have to increase its income in 2015 to undertake its commitments under the legislation.

The staff associations have undertaken a campaign of non-payment in respect of the new annual retention fee of €150 and have advised their members to pay the 2014 fee of €100 instead. Any nurse who does not pay the appropriate fee may be removed from the register. If a nurse or midwife is removed from the register, he or she will not be permitted to practise from the date of de-registration. However, the commencement of any de-registration process is an administrative matter and at the discretion of the NMBI. The NMBI has advised that it is committed to making its best endeavours to resolve the impasse with the staff associations.

I met the president, vice president and chief executive of the NMBI on 29 January to discuss the dispute. I again requested that the board re-engage in discussions with the staff associations as a matter of urgency. I expressed my concern regarding the implications for the health service and patient safety should the current impasse over the annual retention fee continue. I have asked the board to arrive at an outcome that secures its minimum financial operating requirements and avoids a scenario whereby nurses may be removed from the register for non-payment of fees, with potential consequences for service availability and continuity of care.

Since meeting the board’s representatives, I have been informed that it has engaged in discussions with the nursing unions with a view to holding further talks, possibly facilitated by a third party, on the means by which the board and staff associations might come to an agreement on the fee structure for the future. The NMBI has indicated that it will consider amending the fee at a meeting scheduled for 3 March. Furthermore, it has indicated that it will withhold issuing reminder notices to registrants until after the review takes place at that board meeting.

As of 12 February, 25,980 nurses had paid the full €150 fee. An additional 8,000 have paid the €100 fee and some 30,000 have paid nothing so far. The 1,245 graduates of 2014 who registered with the NMBI and paid prior to December 2014 have registration certificates which are valid until the end of this year. I will continue to monitor the situation closely over the coming weeks and I again encourage all parties to take the necessary steps to reach a resolution to this issue. It should not be insurmountable. In the event of any nurses being de-registered for non- payment of the fee I am confident the HSE will take appropriate action to ensure that patient safety and continuity are maintained. As it appears that a process is under way involving a third party, it will not be the case that anyone will be de-registered in six weeks time. A process has to be gone through before any nurse is de-registered and that process has been suspended during the current talks.

25/02/2015E00200Senator John Crown: I am very grateful to the Minister for his thoughtful response. Nurs- 244 25 February 2015 es believe right now that their only two interactions with the board are to be given their money and to be disciplined by them. They are not aware of any great service being rendered to the profession, in particular in the area of continuous professional development and they feel the board has not stepped up to the mark in that area. I am hopeful that the current potential crisis can be overcome but in the long term some serious thought should be given by the board to the whole portfolio of their activities relating to developing the nursing profession.

I am reassured that in the event of a large number of nurses being de-registered steps will be taken to ensure patient safety. There only seem to be three ways that can happen. The first is to somehow give the nurses who have been de-registered some administrative leeway to allow them to continue to work. Second, it can be achieved by hiring other registered nurses to strike- break, though I am aware that is not necessarily the right word. Perhaps I should say “overcome the industrial dispute”. Third, we can cancel procedures and decrease the workload per nurse. I understand there is a negotiating position but can the Minister give us a hint as to which way the specifics of the measures to ensure patient safety will lean?

25/02/2015E00300Deputy Leo Varadkar: The Senator knows this but it is important to say the main service the nursing and midwifery board provides is for the public and patients. It is not there to service the interests of nurses and midwives per se, nor is it a trade union or staff association. It exists to protect patients and ensure fitness to practise. It hears complaints, such as those against the nurses shown up in the “Prime Time Investigates” documentary on Áras Attracta. It does, of course, provide services to nurses, such as the documents they may need to travel and work overseas, and it is intended to bring in competency assurance as well but the main reason it is there is to protect the public and patients. It is not a nursing advocacy organisation. It is also generally well established that professionals should bear the cost of their own regulation. The fee nurses pay is higher than that paid by therapists but medical and surgical interns, many of whom earn less than nurses, pay more, at €310. Pharmaceutical assistants, who also earn less than nurses, pay over €200. The fee nurses are being asked to pay is very much in the middle range. Nonetheless, there has been a big increase and it has almost doubled in two years. It is legitimate for nurses to ask why this increase has taken place, how the money is being spent and whether it will keep going up. The nurses have reasonable concerns in this matter and I hope all the questions can be answered to their satisfaction and to that of the board through the current process. The HSE does have options and it is probably best for me not to speculate on which of the three or four options, or which combination of them, is intended but contingency planning is under way. Having said that, it is my expectation and hope this issue will be resolved as everybody wants it to be resolved without patients being endangered in any way.

25/02/2015E00400Senator John Crown: I agree with the Minister and do understand the role of the nursing board but the best way to ensure safety is prospectively, not retrospectively. In Ireland we have too often followed the black box philosophy. We put structures in place to investigate health care disasters after they occur. If I may paraphrase an expression usually used in another context, it is the politics of the last health care atrocity. We need structures which prospectively prevent such disasters occurring. I believe the nursing board does have an advocacy role for standards in the profession and is not there just to inspect them after something happens. The money would be much better spent if the board used its efforts to ensure continuous professional education is developed.

25/02/2015E00500Deputy Leo Varadkar: I agree that the board also has a role in advocacy and it is not only concerned with fitness to practise One of the aspects of the legislation I am about to commence deals with exactly that subject, namely, competence assurance. There is, however, a cost as- 245 Seanad Éireann sociated with that and the cost will have to be met.

Sitting suspended at 11.15 a.m. and resumed at noon.

k25/02/2015K00100Order of Business

25/02/2015K00200Senator Maurice Cummins: The Order of Business is No. 1, Workplace Relations Bill 2014 - Committee Stage (resumed), to be taken at 1.30 p.m. and adjourned not later than 5 p.m., if not previously concluded; and No. 59, Private Members’ business, non-Government motion No. 17 re health services, to be taken at 5 p.m., with the time allocated for the debate not to exceed two hours.

25/02/2015K00300Senator Darragh O’Brien: I congratulate the Irish cricket team on a fantastic victory this morning. It was very hard fought and follows its win against the West Indies last week. The Irish cricket team has not received any capital funding from the Government. 12 o’clock We need a few extra quid to finish our ground in Malahide. This is the perfect time for the Minister of State at the Department of Transport, Tourism and Sport, Deputy Michael Ring, to announce a bit of capital funding because in the worst of times, I delivered €450,000 for it. That is coming to fruition now. It is a fantastic result for Phil Sim- mons and the Irish team. I hope they will get out of the group but I think they will. We have a couple more games to play to get into the quarter finals.

25/02/2015K00400Senator Terry Leyden: I like the “we” bit.

25/02/2015K00500Senator Darragh O’Brien: I thank the Senator. Later today we will have a debate on the health service, tabled by my party. I hope the Minister for Health, Deputy Leo Varadkar, will take it. Some of his comments on Tony O’Connell’s letter about-----

25/02/2015K00600An Cathaoirleach: The Senator should not name people who are not here to defend themselves.

25/02/2015K00700Senator Darragh O’Brien: The former national director of acute hospitals in the Health Service Executive, HSE, who no longer works within it-----

25/02/2015K00800An Cathaoirleach: He can be easily identified.

25/02/2015K00900Senator Darragh O’Brien: I refer to the letter from the HSE on the report of the number of wards taken up because there are no proper step-down facilities in place. Last September, there were 703 delayed discharges from hospitals. That is equivalent to 30 wards remaining unavailable to people who need those beds, many of which are acute beds. We have discussed this time and again in the past three and a half years. What surprised me this morning is that the Minister said there was nothing in the letter that was a surprise to him. He is the Minister for Health. What is he doing about it and what did his predecessor do about it? I know additional funds were given to the fair deal scheme this year but that is on the back of cuts last year and the previous year. We must also consider step-down facilities-----

25/02/2015K01000An Cathaoirleach: There will be a debate on this issue tonight.

25/02/2015K01100Senator Darragh O’Brien: We will not have a debate specifically on this issue. I suggest to the Leader that we have a public consultation session in the Seanad on this area. That has

246 25 February 2015 worked very well before. The local authorities have a role in this with regard to housing adapta- tion grants and various things that can be done and fixed very quickly without much money. It is important. We are not getting leadership from the Minister for Health, Deputy Leo Varadkar, on this matter. I await his answers this evening.

Will the Leader confirm that the Minister for Health is coming to the House to take that debate later today? I hope he is. There will be some good suggestions from this side of the House as I am sure there will be from the other side. The system continues to lurch from one disaster to another, regardless of who the Minister is. There does not seem to be any difference between this Minister and his predecessor, Deputy James Reilly. This Minister continues to be a passenger. He does not appear to want to take control or make decisions or do anything more than tread water. That is not acceptable to me or my colleagues.

25/02/2015K01200Senator Ivana Bacik: I join Senator Darragh O’Brien in congratulating the Irish cricket team, which has been doing so well. We would all like to join in the congratulations. I suspect the Senator is on a sticky wicket when he tries to look for additional funds for Malahide Cricket Club.

25/02/2015K01300Senator Darragh O’Brien: It is our international grounds.

25/02/2015K01400Senator Ivana Bacik: It is a beautiful cricket club. I am joking. I do not think the Senator is on a sticky wicket.

I welcome good news from the quarterly Central Statistics Office, CSO, household survey figures this morning which show a strong increase in employment. An article by Deputy Joanna Tuffy in The Irish Times today points out the Government’s record on job creation has been well ahead of the target set in 2012 with the job creation programme, which was at that point criticised for being over ambitious. The Government’s creation of 80,000 jobs since then looks set to exceed the target. We all welcome this. It is also welcome that the cost of borrowing for Ireland has today dropped below 1% for the first time in many years.

When will the Children and Family Relationships Bill 2014 be brought before this House? It is welcome that it started Second Stage in the Dáil yesterday and there were some very strong speeches in support of the Bill, not only by the Minister for Justice and Equality but also by members of the Opposition. The Oireachtas Joint Committee on Justice, Defence and Equality held pre-legislative hearings on the Bill and it was broadly welcomed by the front line groups working with children and family support, and by stakeholders. That broad welcome was reflected in the Dáil debate yesterday. I hope we will see a similar debate in this House when it comes before us.

Will the Leader arrange for a debate on child care provision? Some colleagues have already asked for that. The high level group on child care, convened by the Minister for Children and Youth Affairs, Deputy James Reilly, is to have its first meeting today and is to report to the Minister by the summer. We might have that debate when the report is produced. The report will consider new models of funding and measures such as the extension of the early childhood care and education, ECCE, scheme. It must also consider tax relief for child care which is a huge issue for working parents.

I condemn the actions of Islamic State, ISIS, in northern Syria, which has captured close to 200 Christians and is continuing a despicable campaign of slaughter and abductions in that region. That organisation is continuing a very despicable campaign of slaughter and abductions 247 Seanad Éireann across the region. I add my voice to those of other Senators who are seeking a debate on this matter.

25/02/2015L00200Senator David Norris: I join colleagues in congratulating the Ireland cricket team on its remarkable victory. The team has enjoyed wonderful success in recent years, including de- feating England, the home of cricket. What the Ireland cricket team is doing is indicative of a remarkable cultural change in this country. There used to be quite a bitter antagonism here in respect of sports such as cricket and rugby. The latter is flourishing, particularly in the context of working-class teams in Limerick, etc., but cricket is only just coming out of the shadows. This is very welcome because it shows the cultural diversity in this country.

I strongly welcome the fact that the yield on ten-year Irish bonds has fallen below 1% for the first time. Some years ago the yield stood at 14%. It is a remarkable turnaround. I disagree strongly with the Government in respect of its economic policies and analysis and am of the view that we need a far more radical approach than that which is being pursued. All the financial institutions should be scrutinised and the ratings agencies should be disestablished and publicly discredited. However, we are now so far embarked on the process relating to this matter it seems that the best and wisest course for the country is to leave the Government in place. I say this with some reservations but it seems that having gone so far down this avenue and reaped success within the limits of the financial system which circumscribes the Govern- ment’s actions, it would be foolish to change horses in mid-stream. I hope, therefore, that this Government is returned to power at the next election. I also hope that here will be a very strong Fianna Fáil-led Opposition.

25/02/2015L00300Senator John Gilroy: “Opposition” being the key word.

25/02/2015L00400Senator Hildegarde Naughton: I raise the issue of greenways in the aftermath of a meeting which took place this morning with the Minister for Transport, Tourism and Sport, Deputy Paschal Donohoe, in respect of the greenway from Loughrea to Galway. While there were few difficulties regarding the part of the route from Dublin to Athlone, with land being provided by Waterways Ireland and the public transport authorities, the proposed route from Loughrea to Galway traverses through private lands. At this morning’s meeting I raised the concerns of landowners and farmers regarding the consultation process, particularly their view to the effect that it has not been adequate. Farmers are particularly concerned with regard to the potential devaluation of their lands and the fact that such lands will be bisected by the greenway. They would experience huge difficulties in terms of moving animals across the greenway on multiple occasions each day. There are also concerns with regard to insurance and the fact that insufficient protection may be provided in the context of farm animals entering the greenway and causing danger to the public. The latter could give rise to a high potential cost for farmers. All of the concerns to which I refer were raised with the Minister at this morning’s meeting. Farm- ers and farming organisations are very much in favour of greenways and realise their potential as a tourism amenity for the western region. However, they are calling for proper consultation and community consent. The latter will be key if we want the greenway project to be successful. The Minister has committed to providing a response to the concerns that have been raised in the coming weeks. I ask the Leader to invite him to come before the Seanad in order that he might do so here.

25/02/2015L00500Senator Paschal Mooney: Yesterday, I raised with the Deputy Leader the withdrawal of services by Bus Éireann. I am pleased to say that at its meeting this morning, the Joint Com- mittee on Transport, Tourism and Sport, of which I am a member, has agreed to invite rep- 248 25 February 2015 resentatives from Bus Éireann and the National Transport Authority to come before it in the next two weeks in order to discuss their policies. I wish to raise with the Leader the role of the Department of Transport, Tourism and Sport in respect of this matter and the fact that it is responsible for providing funding for transport in this country. Such funding includes the subsi- dies provided to CIE and the money invested in the rural transport programme, which has been significantly cut in recent years. It appears that the proposal I made yesterday - I also made it at this morning’s meeting of the committee - is being increasingly embraced by those who are following the debate on this important issue and its impact on rural areas.

The matter which the Department now needs to address is that which relates to connectiv- ity. The Department should open up particular bus routes through towns and villages and allow private operators to apply for licences in respect of them under the public service obligation, thereby ensuring any services provided would be subsidised. There is no question that in the light of the small populations living in such towns and villages and their environs, the services to which I refer would not be commercially viable. This problem in this regard is increasingly circular because if services continue to be withdrawn, fewer people will live in rural areas. As a result, rural Ireland will effectively shut down. I ask the Leader to communicate to the Depart- ment of Transport, Tourism and Sport my suggestion that it issue a statement in respect of its policy on rural transport. I also ask that he encourage it to give urgent consideration to carrying out a review of that policy in the context of its impact on rural Ireland in the aftermath of Bus Éireann’s decision to withdraw services from certain towns and villages.

At a meeting of one of the joint committees yesterday, the Minister of State with responsibility for rural development, Deputy Ann Phelan, indicated that - contrary to what the Minis- ter for Communications, Energy and Natural Resources, Deputy Alex White previously stated some months ago - the Government is not going to be able to roll out high-speed broadband services. This is another issue that is of pertinence and great importance to those who live in rural areas. I ask that the House be given the opportunity to debate the issue of the expansion of broadband services. Not only is it incumbent on the Government to provide such services to rural areas, it is also incumbent on information communications technology, ICT, companies to do so. I would like to discover the current state of play in respect of this matter, not just in terms of the Government’s role but also regarding those of Eircom and all other service providers. If one considers the decline in rural transport services and the lack of proper broadband services in rural areas, one must reach the conclusion that the future for the people in these areas who are trying to engage in entrepreneurship and attract industry and employment is bleak.

25/02/2015L00600Senator John Gilroy: I join colleagues in congratulating the Ireland cricket team on its remarkable win this morning. Cricket has a long tradition in Ireland. It is remarkable that in areas where hurling is particularly strong, cricket was also very strong in the past. It should be noted that the competition for the Ashes, which involves England and Australia and which is played every four years, was begun by Ivo Francis Walter Bligh, the eighth Lord Darnley, who had his estates in Athboy, County Meath. Indeed, County Meath would be known as a hotbed of Irish cricket.

I am sure Members on all sides will agree with Senator David Norris that the current Gov- ernment should be returned to office. The Senator also referred to the yield on ten-year Irish bonds falling below 1% for the first time. Four years ago, that yield stood at 16%. The yield on ten-year bonds reflects the level of risk involved. The fact that the yield on Irish bonds has fallen to 1% shows that the risk relating to this country defaulting on its debt is extremely low. The yield also reflects the economic and political stability in Ireland at present. The reduction 249 Seanad Éireann in our bond yields is attributable to the sound - often tortuous - policies the Government has introduced. There is no doubt these policies have inflicted a great deal of pain on Irish people but it is important to note that the country is recovering, that unemployment levels are falling and that all the indicators show we are doing well. If we had stated that we would be in this position only four years ago, no one would have believed us. Perhaps the Leader will arrange a debate in the near future on the direction our economic policy is taking.

25/02/2015L00700Senator Gerard P. Craughwell: I join everyone else in congratulating the Ireland cricket team. It is a great day for the country.

I raise concerns about plans to reduce the number of firefighters by one or two per fire appliance. Members of the fire service place themselves in peril daily to serve the needs of their communities. Reducing the numbers on fire appliances places communities and the firemen themselves at risk. The Leader will be aware that members of the Dublin fire service marched yesterday from Parnell Square to the Dáil to raise their concerns. I am told that a typical fire crew consists of one commander, one operator, two firemen who engage in rescue service and two who remain outside the building for standby purposes. I trained in the use of breathing apparatus many years ago and I am acutely aware of how important it is that firemen can get in and out of dangerous situations without placing themselves at risk. Reducing the size of fire crews on appliances places not just the firemen, but also communities, at risk. Members of the fire service have been asking for details of a risk assessment that has apparently been carried out to support this reduction and no such assessment has been made available to them. There is evidence from the UK that reducing the number of active firemen on an appliance has caused serious injury and loss of life among firemen. This concerns the firemen in this country. I spoke to representatives of SIPTU this morning. It will be conducting a ballot of its members in light of the fact that the memo from the Department is about to be executed. Will the Leader either bring the Minister before the Seanad to outline what risk assessment has been carried out and what the results of this assessment are, or will he bring a copy of the assessment to the House himself, in order that we can pass it on to the relevant fire services? This is a matter of great urgency and I ask him to deal with it as quickly as possible.

25/02/2015M00200Senator Paul Coghlan: I join Senator Darragh O’Brien and others in congratulating the cricket team. I come from County Kerry, and as the Senator rightly pointed out, there is no history there of cricket of which that I am aware. We have a cricket field in Killarney, but all I remember being played down there was rugby. It was forecast to me that the Senator would certainly raise this matter this morning, that Malahide was the home of Irish cricket.

25/02/2015M00300Senator Darragh O’Brien: At least I am consistent.

25/02/2015M00400Senator Paul Coghlan: I read in the newspaper this morning that Deputy Mícheál Martin stated in the other House yesterday that the authorities are turning a blind eye to fuel laundering, cigarette smuggling and so on. He admitted that it may be an anecdotal view. Certainly there is that anecdotal view and we also met it recently in our study, before we compiled the report. The truth is that co-operation between the police forces, North and South, is excellent. They have everything short of hot pursuit, which I would not recommend as they do not need it. In the Dundalk region there are 34 Border crossing points and it is difficult to police it all. Gardaí in that area have received threats from some of these people in the past. Some of these people have obstructed and driven through road blocks. North of the Border, in south Armagh, polic- ing is even more difficult. There is a personnel shortage. One will not find any policemen on the beat or near on the beat. They have armoured vehicles for when they leave their barracks. 250 25 February 2015 The place is a fortress. It is not tolerable that 17 years after the first peace agreement, we have certain crime overlords and drug smugglers openly flouting the law. In this House yesterday some of our colleagues called for debate on the matter. I agree with them on that. It would be useful. I know, following discussion with the Taoiseach, the Minister for Foreign Affairs and Trade, and the Minister for Justice and Equality, that the Government is pursuing these matters with its counterparts in the North and in London. This is subject to ongoing discussion at the level of the British-Irish Ministerial Council, but we should have a debate in this House.

25/02/2015M00500Senator David Cullinane: I support the call by Fianna Fáil for a debate on health care. We have called for that several times in the past few weeks.

I also support the call for a debate on cuts to rural bus services, which is very topical at the moment because of a decision by Bus Éireann to cut almost 100 rural bus routes. Under the changes, 15 communities will be left with no direct services and many more communities will experience cuts to their bus links. The plan is to remove route 5, from Waterford to Dublin via New Ross and Enniscorthy, which runs four times a day, and the route from Rosslare to Dublin via Wexford, Bunclody, Tullow and Tallaght is also to close. These routes employ seven drivers and service the major hospitals in Dublin, as well as UCD, Trinity College Dublin and the DIT. It is inconceivable that towns like Bunclody, Castlecomer in Kilkenny and Ballyporeen will have no direct service to Dublin, while in the west Roscommon and Castlerea, among others, will be cut off from Westport.

It is interesting that the chief executive of Bus Éireann, Martin Nolan, said that if the Gov- ernment wanted smaller towns and villages on commercial routes to be serviced, it would have to provide a subsidy. This is a bit like the HSE and the Minister for Health having a row about who takes responsibility for what. Will the Leader arrange a debate on this issue in order that we can have a discussion with the Minister for Transport, Tourism and Sport, who must take primary responsibility for what is happening? There is an issue for the management of Bus Éireann as well, but the loss of bus services to rural towns, which have already lost post offices, Garda stations and so on, will be another attack on rural Ireland. We have had discussions in this House about the decline of rural Ireland. We must do our best to ensure these services remain in place.

25/02/2015M00600Senator Michael Comiskey: I welcome the good news that in the past few hours the Min- ister for Public Expenditure and Reform has signed an agreement for an €800 million peace programme for Ireland. It is very good news and must be welcomed. That will mean there will be €100 million coming into the BMW region. This will create jobs, growth and research and development, and it will help counteract long-term unemployment among young people. Having served at Leitrim County Council level over the past few years on the PEACE II and PEACE III programmes, I know full well the good that can be delivered when this money is brought in. It will mean a total of €2 billion between 2015 and 2020.

I also support my colleague, Senator Hildegarde Naughton, on the development of the greenway in her area. We are anxious to develop a greenway through Sligo, Leitrim and right into Cavan and Northern Ireland, but consultation must take place with the farming community there. It is vitally important that all the farming organisations get involved in this issue. I was to the fore when there was a debacle about hillwalking issues in the farming community. The only way to resolve that was by sitting down and talking to the farmers. Much good can come of it and it will develop the west of Ireland.

251 Seanad Éireann

25/02/2015M00700Senator Feargal Quinn: I am delighted about the attention being given in recent days to problems in the Border area, particularly the fuel smuggling that has gone on. I hope something comes of it. We have debated this before and have asked for debates on it before. It really is bandit country up there, both north and immediately south of the Border. It seems they can get away with it with impunity.

To what extent is this related to sentencing policy? Senator Ivana Bacik has spoken in the past about the reason for jail sentencing. Is it rehabilitation, punishment, or some other reason? We should bring attention to that on a more regular basis than has been the case in the past. The area of sentencing needs consideration, particularly given that there are people who seem to be quite happy about going to jail. One of the suggestions the former Minister, Deputy Alan Shat- ter was working on was attaching fines to the income, whether it is one’s dole or salary. I do not think that has come about. We found a way of doing that with property tax and water tax, that we can take money away from income, but we have not found it in regard to criminals. That seems like something we should be moving on. We should move with alacrity. We do not have to delay as it would be a comparatively simple piece of legislation.

25/02/2015N00100Senator Colm Burke: I join my colleague, Senator Michael Comiskey, in welcoming the agreement which has been reached on funding. It is extremely important for the region.

I raise the matter of the decision of a legal practice in Dublin to act for the tobacco companies. The same legal practice has the main contract for the Health Service Executive. It is outrageous that two sets of rules are now applied by the Law Society of Ireland. There is one rule for large companies which talk about a Chinese wall separating one entity acting for the State from another acting against it. This is not possible in smaller legal practices, for which there is another rule. If a mother or a father transfers a site to a son or a daughter, the son or the daughter must use a different legal firm from that acting for the parents. There is no such thing as a Chinese wall in that scenario and it is wrong that we should have to put up with two sets of rules. As I said on a television show recently, this big company has its bread buttered on both sides and we should not tolerate this. When the contract comes up for review, it should not be renewed for this firm. The challenge to the legislation by tobacco companies will not cost the Government any money, but it will cost the taxpayer a huge amount. It is about time we stood up to this and ensured it is not the taxpayer who ends up picking up the bill. If the firm in question wants to act for a tobacco company, it should be given the option of walking away from the HSE contract, but it cannot have both options.

25/02/2015N00200Senator Michael Mullins: I join colleagues in congratulating the Irish cricket team on its result this morning. As a small nation of 4.5 million people, we fare extraordinarily well and today’s performance by our cricketers against the United Arab Emirates was fantastic.

25/02/2015N00300Senator Paschal Mooney: It is an all-Ireland team. The Senator should have said we have 6 million people.

25/02/2015N00400Senator Michael Mullins: I also welcome the CSO figures this morning which show very strong growth in employment which is likely to continue in the next few years. As we head towards full employment, we need to assess how well equipped we are with the skills required by the many companies now locating here. I ask the Leader to organise a debate in the Seanad with the Minister of State with special responsibility for skills, research and innovation, Deputy Damien English, to thrash out the skills requirement. In particular, we need to assess how well equipped we are in low-skilled trades. We pride ourselves on having a very well educated 252 25 February 2015 workforce, with very good skills in technology and IT, but companies also require other skills. I saw an interesting recent statistic which pointed to the freight transport and logistics sector as requiring a further 20,000 skilled workers by 2020. Therefore, there is a need to develop a structured career path for lower skilled employees. We need to have a full debate with the Minister of State on how the apprenticeship system can be enhanced to meet these skill requirements. I hope the Minister of State will make himself available in the near future to discuss this issue. We want to ensure the upward trajectory in employment figures continues and the last thing we want is a situation where we cannot meet the requirements of companies which wish to locate here.

25/02/2015N00500Senator John Kelly: I support Senator Gerard P. Craughwell, not in the search for his sto- len Honda 50 but on the issue of the impending firemen’s dispute which may end up in strike action. For a long time both the local authorities and the Department of the Environment, Com- munity and Local Government have been cutting costs by reducing the number of firemen being sent out on calls. They produced a document entitled, Keeping Communities Safe, but all the document states is that there are going to be fewer people called out to deal with accidents and fires. I do not even think the Minister realises what is going on. I have brought it to his attention and will call on the Minister for the Environment, Community and Local Government to defuse the situation. It is not the Minister who is driving this - it is driven purely by civil servants. He must realise that we need to at least keep the status quo and, if possible, improve the service. I told the Minister for Health, Deputy Leo Varadkar, in the House last week that not only should we value the work of firemen, we should also enhance their training to bring them up to first responder level. This would defuse the dispute and help to avoid the impending strike.

25/02/2015N00600Senator Eamonn Coghlan: I also offer my congratulations to the Irish cricket team on its wonderful success today. It is one of only a few sports in Ireland that enjoys funding from both sides of the Border. Senator Darragh O’Brien said it had received no capital funding from the Government in the past few years. This year alone it received €487,760. The Senator will find that information on the website of the Irish Sports Council.

25/02/2015N00700Senator Darragh O’Brien: What is it for? It is not capital funding.

25/02/2015N00800Senator Eamonn Coghlan: It is core funding for high performance sports. Cricket Ireland also enjoys the benefits of the Irish Institute of Sport. I was on the board of the Irish Sports Council before I came into the Seanad and cricket was one of the sports targeted for high performance funding. Since 2008, when the cricket team beat Pakistan, the Irish Sports Council has strategically supported cricket and the results are evident in its recent successes. We are accustomed to seeing people come out onto the streets to play tennis during the championships at Wimbledon and in the next few years we will see people come out to play cricket in the same way. It has arguably made more advances than any other sport in Ireland, particularly at international level. I congratulate the Irish Sports Council and the Government on giving their backing to Cricket Ireland.

25/02/2015N00900Senator Darragh O’Brien: The Government has not given it any capital backing.

25/02/2015N01000Senator Maurice Cummins: A lot of Senators are batting for the cricket team today and I join them in congratulating the Irish team on its success. I hope they will get to the quarter finals, but they will need another victory. I am glad that Senator Eamonn Coghlan mentioned the grant aid of €487,000 to Cricket Ireland, but Senator Darragh O’Brien made a point about capital funding. If it applies for capital funding, I am sure it can be successful in securing it. 253 Seanad Éireann

25/02/2015N01100Senator Darragh O’Brien: Please God. The Leader should use his good offices to ensure it happens.

25/02/2015N01200Senator Maurice Cummins: If the application is as good as others coming before the Minister, I am sure it can receive funding.

The Minister for Health, Deputy Leo Varadkar, will be present in the House for Private Members’ business. Senator David Cullinane asked for an overall debate on health and we will have that debate today. It was arranged before he even knew about it. The Minister is looking forward to being here for two hours for a robust debate.

Senators Ivana Bacik, David Norris and John Gilroy have welcomed the fact that bond yields are now at 1%, compared to 16% at one stage. This is of great benefit to the country and its economy.

Senator Ivana Bacik asked when the Children and Family Relationships Bill would be brought before the House. While it has reached and commenced Second Stage in the Dáil, I am not aware when it will finish its passage there. I understand the Second Stage debate will take place this week, with Committee Stage planned for next week and Report Stage scheduled for the following week. However, I have given assurances to the Minister that as soon as it is completed in the other House, Members will commence the debate on the Bill in this House. At this stage, it appears as though Members may get to deal with it on Second Stage on 12 March. It is hoped this can be done, but it all depends on how the Bill proceeds in the other House. Senator Ivana Bacik also raised a question on child care provision, an issue on which Members can have a debate when the report to which the Senator referred is published.

Senator David Norris also referred to bond yields. I certainly welcome his support for the re-election of the Government. As is his right, he has been highly critical of it on many issues, but I believe he realises, as I hope many others will, that it has delivered for the country and is providing stable government. Let me not state his good wishes were just for the Government, as he also wished Fianna Fáil well and that it would return with many more seats. I do not wish to misquote him in any way.

Senators Hildegarde Naughton and Michae Comiskey spoke about the difficulties some farmers were having with the development of greenways. As mentioned, consultation is the key in this regard. The Minister is well aware of the position. I am sure the issue can be resolved through consultation.

Senator Paschal Mooney raised the question of bus services to rural areas, an issue about which Senator David Cullinane also spoke. I am glad that the Senator mentioned that it will be discussed by the Oireachtas Joint Committee on Transport and Communications, where I am sure there will be a fruitful debate. As the Senator is aware, Bus Éireann operates three types of service, namely, provincial city services, rural stage carriage services and intercity services. It will receive public service obligation funding of €32 million in 2015 under a contract with the National Transport Authority. It receives no State funding for commercial Expressway intercity services and must fund the purchase of buses for such Expressway services. There has been strong public concern expressed locally about the likely impact of reduced services in some locations and many representations have been made by Oireachtas Members and local representatives. At a community meeting held in Castlecomer last night representatives of Bus Éireann agreed to postpone the changes to its licensed route 7 services until the summer. There has been

254 25 February 2015 some movement on this issue which I am sure can also be resolved through consultation.

Senator Paschal Mooney also raised the issue of the expansion of broadband services. It is of paramount importance to small businesses in rural areas, in particular, that broadband is up to speed. Members had a debate on 27 January with the Minister for Communications, Energy and Natural Resources, Deputy Alex White, in which 12 Senators took part. Consequently, it probably is a little too soon to have a further debate on the issue, but I will monitor and keep it under observation.

As I noted, Senator John Gilroy outlined the importance of low interest rates for the economy, with stability being the key for the markets.

Senators Gerard P. Craughwell and John Kelly raised the issue of the proposed reduction in firefighter levels. Health and safety issues should, undoubtedly, be the primary consideration when dealing with this matter. I hope sense will prevail and that consultation will take place before any strike action takes place. “Talk-talk” is very important in these issues and I hope the relevant parties will get together and reach some agreement on this important issue and the important service firefighters provide for the public on a daily basis.

25/02/2015O00200Senator Gerard P. Craughwell: Can the Minister come to the House to discuss it?

25/02/2015O00300Senator Maurice Cummins: Senator Paul Coghlan has outlined that there are 34 Border crossing points in the Dundalk Garda region and that 17 years after the peace process, there should be no perceived no-go areas. This is a point Senator Feargal Quinn also mentioned. Fuel smuggling has been ongoing for far too long. As I heard someone say yesterday, if the intelligence services of the United Kingdom can find Osama bin Laden in a cave, it should be easy for them to find out where diesel laundering is happening. I do not suggest a blind eye is being turned to it, but it has been ongoing for far too long. It should be addressed and tackled as a matter of urgency because it is clearly evident that the criminals involved in this illegal activity are living in houses and have a standard of living that far outweighs the income coming into them. Consequently, it should not be rocket science to tackle the problem. Senator Feargal Quinn is correct to state sentencing policy is not strong enough and that the fines involved are far too low for this type of activity. I have asked the Minister of State at the Department of Finance, Deputy Simon Harris, to come into the House to address this matter. I hope he may be in a position to do so next week but, if not, he will do so very soon thereafter. I compliment Senator Paul Coghlan and his committee in the British-Irish Parliamentary Assembly on the comprehensive report it prepared on the matter.

I believe I have addressed the two issues mentioned by Senator David Cullinane, namely, the need for a debate on health, on which a debate is to take place today, and the discussion by the Oireachtas joint committee on bus services. He also raised a question about post offices. I will reiterate a point I have made many times. In the four or five years before the Govern- ment took office hundreds of post offices were closed nationwide. Since the Administration has taken office, fewer than 20 have been closed. These statistics are sufficient to prove that the Government is committed to the post office network and doing everything possible to put business its way. However, there is competition and post offices must also seek and find ways to attract extra business.

Senator Michael Comiskey welcomed the announcement made this morning on the €800 million in funding for the PEACE programme. This is of great importance to rural Ireland and

255 Seanad Éireann rural communities in Border areas, particularly in terms of employment creation. I am sure it will be welcomed by all rural communities but particularly by those in Border areas.

Senator Colm Burke spoke about contracts for legal firms and the two sets of rules within the legal service. I agree fully with him that companies which represent tobacco companies should make up their minds on whether they wish to compete for Government contracts while representing tobacco companies. The Government and the Minister for Children and Youth affairs, Deputy James Reilly, in particular, have been strong on this issue. The Minister has suggested companies which represent tobacco companies should not be getting contracts within his Department.

Senator Michael Mullins welcomed the Central Statistics Office’s employment figures, in particular, and referred to the need to develop the apprenticeship system. That is a very important issue at this time when there is a need to develop such skills and so many people are unemployed. It is an issue we should debate again.

Senator Eamonn Coghlan referred to the grant aid of €487,000 given to Cricket Ireland this year.

Order of Business agreed to.

Sitting suspended at 12.50 p.m. and resumed at 1.30 p.m.

25/02/2015T00100Workplace Relations Bill 2014: Committee Stage (Resumed)

NEW SECTION

25/02/2015T00300Acting Chairman (Senator Pat O’Neill): I welcome the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton. We are resuming Committee Stage on amendment No. 48 in the name of Senator David Cullinane to section 29. The amendment proposes the insertion of a new section.

25/02/2015T00400Senator Kathryn Reilly: I move amendment No. 48:

In page 28, after line 37, to insert the following:

“Liability of a company officer or officers for a breach of employment law

29. Where a breach of employment law is committed by a body corporate or by a company officer or officers acting on behalf of a body corporate and is determined to have been so committed, with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person or persons who, when the breach was committed was a company officer or officers of the body corporate, then that person or persons shall be personally liable for the breach committed.”.

The amendment has been designed to pierce the corporate veil to enable the pursuit of directors of a company to ensure employees can seek recovery of payments and access to entitlements. The amendment would tackle the Connolly Shoes scenario, in which company A employed staff but all of the assets were held by company B.

25/02/2015T00500Minister for Jobs, Enterprise and Innovation (Deputy Richard Bruton) (Deputy Rich- 256 25 February 2015 ard Bruton): The amendment is not appropriate as section 7(2) of the Bill already provides for the criminal liability of certain persons connected to a body corporate in certain circumstances in the case of offences under the Act. Extending liability for the debts of a solvent company to its officers would, I am advised by the Attorney General, be constitutionally suspect and represent a major departure in company law. The overriding principle of company law is that a director’s duties are owed to the company, not to the individual shareholders or the employees. If there is a breach of duty on a director’s part which causes damage to the company, he or she can be sued and held liable for damages. Claims can be brought by shareholders, financial institutions or on a director versus director basis. Liability may arise from a lack of care or skill in the performance of the director’s duties, including negligent advice or misstatement. Any act which goes beyond the limits of a company’s constitution such as excessive borrowing, the making of unauthorised payments, a failure to disclose the full extent of the director’s interests or a failure to comply with requirements may involve a director or an officer in a personal liability.

Company law penalties vary from restriction or disqualification orders to fines and periods of imprisonment. The new Companies Act provides for a four-tier categorisation for most offences, with the exception of fraudulent trading and market abuse. The Act also contains a new provision in section 872, whereby a court may, following a conviction for an offence under the Act, order that the convicted person remedy any breach of the Act in respect of which he or she was convicted. In effect, the provision is a more constitutionally robust rewording of section 383 of the 1963 Act, as amended by section 100 of the Company Law Enforcement Act 2001.

From a company law perspective, the proposed amendment challenges the entire principle of company law. If it were to be implemented, the doctrine of separate legal personality would become an exception rather than the rule. Having regard to the foregoing, I am not in a position to accept the amendment.

25/02/2015T00600Senator Kathryn Reilly: I thank the Minister for his reply. I will not push the matter at this point, but I reserve the right to resubmit the amendment on Report Stage.

Amendment, by leave, withdrawn.

Sections 29 and 30 agreed to.

SECTION 31.

Government amendment No. 49:

In page 30, to delete line 21 and substitute the following:

“(8) In this section—

“Act of 2007” means the Social Welfare and Pensions Act 2007;

“employer registration number” means, in relation to an employer, the number assigned to that employer in the register maintained by the Revenue Commissioners under Regulation 7 of the Income Tax (Employments) (Consolidated) Regulations 2001 (S.I. No. 559 of 2001); and

“personal public service number” has the same meaning as it has in section 262 of the Act of 2005.”. 257 Seanad Éireann

25/02/2015T01100Deputy Richard Bruton: The amendment is of a drafting nature and does not result in any substantive change to the Bill. It is necessary to include definitions of the terms “employer registration number” and “personal public service number” for the purposes of the section.

Amendment agreed to.

Section 31, as amended, agreed to.

SECTION 32.

25/02/2015T01500Senator Kathryn Reilly: I move amendment No. 50:

In page 30, line 35, after “offence” to insert “and for the purpose of the performance of the Commissions functions”.

The purpose of the amendment is to deal with particulars of one particular dispute by taking into account the subcontracting chains now prevalent in public procurement capital projects. In effect, we are seeking to extend liability beyond the principal contractor with whom the public contracting authority has entered into a contract to subcontractors. In addition, the contracting authority should be empowered to exclude from the tendering process employers who seriously or repeatedly breach employment rights. This is in line with provisions in the three new public procurement directives which provide for joint and several liability in respect of breaches of employment law in subcontracting chains.

25/02/2015T01600Deputy Richard Bruton: Section 32, as drafted, is strictly limited in its application to information on the alleged commission of an offence under a relevant enactment or the contravention of a relevant enactment. As such, the amendment is inappropriate as it is inconsistent with the section taken as a whole.

Amendment, by leave, withdrawn.

Section 32 agreed to.

NEW SECTION

25/02/2015T02000Acting Chairman (Senator Pat O’Neill): Amendment No. 52 is a physical alternative to amendment No. 51. They may be discussed together.

Government amendment No. 51:

In page 30, after line 35, to insert the following:

“Disclosure of certain information to or by contracting authority

33. (1) The Commission may, for the purpose of securing compliance with this Act or an employment enactment, disclose to a public contracting authority information that a primary contractor or a party to a secondary contract has contravened an employment enactment.

(2) Information disclosed to a public contracting authority under this section shall not be used for any purpose other than the exercise by the public contracting authority of his or her entitlements under the primary contract concerned.

(3) The Commission may, for the purpose of securing compliance with this Act or an 258 25 February 2015 employment enactment, require a public contracting authority to disclose to the Com- mission information relating to the contravention of a relevant enactment by a person with whom the public contracting authority has entered into a primary contract, and a public contracting authority shall comply with such a requirement.

(4) In this section—

“contract of employment” has the same meaning as it has in the Act of 2012;

“primary contractor” means, in relation to a public contracting authority, a person with whom the public contracting authority has entered into a contract, and “primary contract” shall be construed accordingly;

“public contracting authority” means—

(a) a contracting entity within the meaning of the European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 (S.I. No. 50 of 2007),

(b) a contracting entity to which Directive 2004/17/EC1 of the European Parlia- ment and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors applies, or

(c) a contracting authority within the meaning of Directive 2004/18/EC2 of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts;

“secondary contract” means a contract (other than a primary contract or a contract of employment) under which a party to the contract agrees to carry out works or provide services to which a primary contract applies on behalf of the primary contractor concerned or any other person.”.

25/02/2015T02200Deputy Richard Bruton: The amendment is in response to an amendment proposed by Deputy Peader Tóibín on Report Stage in the Dáil when I indicated that I would afford further consideration to it. I introduce amendment No. 51 to address the issues raised.

The proposed amendment broadens the scope of the information the Workplace Relations Commission may disclose to a public contracting authority. As previously drafted, the section restricted disclosure to information on non-compliance with employment legislation in relation only to the main contractor engaged by the public contracting authority. The amendment will extend the legislative basis for disclosure to include subcontractors. The extended provision will give greater scope to public contracting authorities to make effective use of the standard provision in public works contracts to withhold payment or part payment of moneys where there is evidence of non-compliance with employment legislation by either a primary or a secondary contractor engaged on the contract in question. The amendment meets the issue raised by Deputy Peader Tóibín.

25/02/2015T02300Senator Kathryn Reilly: In fact, my previous contribution was meant to address amendment No. 52. I am not moving that amendment.

Amendment agreed to. 259 Seanad Éireann Amendment No. 52 not moved.

Section 33 deleted.

Sections 34 and 35 agreed to.

SECTION 36.

25/02/2015T02900Senator Kathryn Reilly: I move amendment No. 53:

In page 33, line 9, to delete “42 days” and substitute “28 days”.

Amendment put and declared lost.

25/02/2015T03300Acting Chairman (Senator Pat O’Neill): Amendments Nos. 54 and 55 are logical alternatives. Amendments Nos. 54, 55 and 58 are related and may be discussed together.

25/02/2015T03400Senator Kathryn Reilly: I move amendment No. 54:

In page 33, line 11, to delete “€2,000” and substitute the following:

“€4,000, save and except in the case of failing to pay the national minimum wage under section 23 of the National Minimum Wage Act 2000 a sum not exceeding €20,000 per employee”.

The maximum penalty should be €4,000. Revenue applies a figure of €4,000 for similar type of penalty. This would help to deal with vexatious employers seeking to delay compliance. In Britain new legislation has been introduced which provides for fines of up to £20,000 for non-payment of the national minimum wage. While we acknowledge the constitutional argument, the bottom line is that breaches of the Act undermine good businesses.

Low pay adds a cost to the State in transfer payments and increased poverty. Maximum fines of €2,000 are not an adequate deterrent. We need to put in place penalties that will enforce a no tolerance policy.

25/02/2015U00200Senator Gerard P. Craughwell: Amendment No. 55 is similar to the one moved by Sena- tor Kathryn Reilly, which I support. A fine of €2,000 is hardly likely to deter an employer from paying less than the national minimum wage. If the fine was set at €20,000 per employee, it could amount to a fairly substantial sum if an employer was underpaying several staff. That would be a deterrent. Social welfare transfers are required where an individual is being paid less than the minimum wage.

25/02/2015U00300Deputy Richard Bruton: I think the Senators misunderstand the purpose of this provision. This is not a penalty for non-payment of the minimum wage. The non-payment of the minimum wage is a criminal offence subject to penalties elsewhere in legislation. The provision dealt with by these amendments is for a fixed payment notice which can only be used in certain limited circumstances. Only three offences are listed in subsection (5) for the purposes of that section: section 11 of the Protection of Employment Act 1977, which deals with the requirement for an employer to consult employees’ representatives and the Minister on collective redundancies; section 4(4) of the Payment of Wages Act 1991, which deals with an employer’s obligation to provide an employee with a pay slip; and section 23 of the National Minimum Wage Act 2000, which deals with an employer’s obligation to provide an employee with a written statement of his or her average hourly rate of pay. 260 25 February 2015 The amendments would have the effect of doubling the maximum amounts specifiable in the fixed charge notice from €2,000 to €4,000 and, in the case of failure to pay the national minimum wage, the fine would be up to €20,000. I consider it excessive to double the maximum fine to €4,000. The proposed amendment to provide for fixed payment notices of up to €20,000 for failure to pay the national minimum wage would invest the inspectorate with such significant jurisdiction that it would be deemed to be engaged in the administration of justice contrary to the Constitution, which reserves this function to the courts. I am taking advice on whether it would be appropriate for a Minister to issue regulations setting out guidelines on the appropriate monetary amount of notices in specific circumstances. The overriding concern in practice would be to ensure consistency in the application of this section and its provisions. For these reasons I do not accept the Senators’ amendments.

25/02/2015U00400Senator David Norris: Amendment No. 55 increases the fine to €20,000. We are clearly following the British in this matter. The British have provided for a fine of £20,000, which is considerably more than €20,000. I do not see any reason we should not follow that model when introducing fines. Failure to pay the national minimum wage entails significant costs for the State. It means the full taxes and social security on the proper wage are not paid and individuals who are paid less than the minimum wage may have claims for certain social welfare payments. The national minimum wage is not something that employers are not aware of. It is accepted that legitimate mistakes will be made at times. An employer may rectify a complaint quickly where there is a small under payment but it is an entirely different matter to defend cases on the basis that the national minimum wage was paid only for it to subsequently transpire that it was not paid. It appears to me that a substantial fine is in order in such a situation. I see no reason we should not follow the United Kingdom in this. My amendment would actually institute a fine that is considerably lower than in the United Kingdom because of the sterling differential. I see no reason the Minister cannot accept this amendment.

25/02/2015U00500Senator Feargal Quinn: Amendment No. 58 does not go in quite the same direction as Senator David Norris’s amendment. The amendment contains a mistake, which I will mention before Senator David Norris points it out. My amendment contains the words “less than 10 employees” but the Senator will advise me that should I should use the word “fewer” rather than “less”. The word “less” refers to bulk and “fewer” refers to numbers. As the Minister would be incorporating the amendment into law, I want to ensure it is correct.

25/02/2015U00600Senator David Norris: I thank the Senator for acknowledging my pedantry.

25/02/2015U00700Senator Feargal Quinn: There should be a difference between a small company and a large one. A small company with fewer than ten employees should not have to suffer the same fine or fixed penalty as a larger company. If we are going to succeed in developing small business, a goal for which the Minister has worked hard, we should ensure companies with fewer than ten employees are not forced to pay the same fines as a much larger company.

25/02/2015U00800Senator David Norris: I support Senator Feargal Quinn’s amendment. All of us want to assist the Minister, who has done a good job in creating employment. We want to see more jobs being created, particularly in small and medium enterprises. A company with less than ten employees-----

25/02/2015U00900Senator Feargal Quinn: Fewer.

25/02/2015U01000Senator David Norris: I beg the Senator’s pardon. The infection is contagious. A com-

261 Seanad Éireann pany with fewer than ten employees may not be in a position to pay this level of fine. The same argument applies to my own amendment, which sets an maximum penalty. Such a penalty is not prescribed but the court would have the option of imposing a fine of €20,000. That is another reason the Minister should accept my amendment. It would allow the imposition of a moderately swingeing fine. With regard to amendment No. 58, I strongly support Senator Fear- gal Quinn because it is appropriate in terms of the size of the business involved.

25/02/2015U01100Senator Gerard P. Craughwell: I hope my colleagues will forgive me if, as a good trade unionist, I oppose amendment No. 58. While I fully understand the need to support entrepreneurship, we do not want companies to be built on the back of cheap labour. I know that Sena- tor Feargal Quinn will forgive me for my opposition.

25/02/2015U01200Senator David Norris: I will not.

25/02/2015U01300Senator Gerard P. Craughwell: I hope he will.

25/02/2015U01400Deputy Richard Bruton: This section is concerned with the penalties that can be issued by way of a fixed payment notice. It is like a traffic cop giving out a fine. An employer who com- mits the offence of breaching the national minimum wage would be prosecuted in the normal way. One cannot hand out a fixed payment notice of €20,000 in this relatively informal manner because, as I noted earlier, that would invest the inspectorate with such significant jurisdiction that it would be deemed to be engaged in the administration of justice contrary to the Constitu- tion. It would be inappropriate to impose such a scale of penalty under a fixed notice. This section does not deal with the wider issue of breaches of minimum wage. Breaches are dealt with in the minimum wage legislation and is enforced through criminal prosecutions. Senator David Norris is trying to shoehorn powers for inspectors to dish out substantial penalties into the fixed payment notice. My legal advice is that such a provision would be inappropriate. There are better lawyers than me around here who can argue that case.

In regard to Senator Feargal Quinn’s amendment, each of these matters is an omission for which an employer could be prosecuted in the courts. The fixed payment notice provides an informal way to address an offence of the three types I outlined where the conclusion has been reached that such a notice would be a reasonable approach to adopt for whatever reasons. They will not proceed to a full blown prosecution. Provision is made for a fine of up to €2,000 and discretion can be used in this regard. A sum of €2,000 is the maximum fine. This is an admission for which an employer could be prosecuted. That approach has to be upheld by applying the same maximum generally. The deterrent must be in place and its application is a matter of judgment.

25/02/2015V00200Senator David Norris: I will not be tedious but I remind the Minister that this is not a fixed fine because there is leeway. All I am doing is providing for a maximum target. The Minister invoked the Constitution.

25/02/2015V00300Deputy Richard Bruton: This section deals with fixed payment notices.

25/02/2015V00400Senator David Norris: The fine can be variable, as the Minister has indicated. The section does not fix and establish a penalty. The Minister invoked the Constitution but failed to nail it. He withdrew from that position and said it was inappropriate, which is a much weaker phrase. A fine of €20,000 similar to that in Britain should be imposed. The British did not have a problem with it. However, I will not press the amendment. I will leave it for Report Stage.

262 25 February 2015 Amendment, by leave, withdrawn.

Amendment No. 55 not moved.

25/02/2015V00700Senator Kathryn Reilly: I move amendment No. 56:

In page 33, line 15, to delete “42 days” and substitute “28 days”.

Amendment put and declared lost.

25/02/2015V00900Senator Kathryn Reilly: I move amendment No. 57:

In page 33, line 19, to delete “42 days” and substitute “28 days”.

Amendment put and declared lost.

Amendment No. 58 not moved.

Section 36 agreed to.

Sections 37 and 38 agreed to.

SECTION 39.

25/02/2015V01500Acting Chairman (Senator Pat O’Neill): Amendments Nos. 59 to 61, inclusive, are related and may be discussed together.

Government amendment No. 59:

In page 34, line 27, to delete “the complaint or dispute” and substitute “a complaint or dispute”.

25/02/2015V01700Deputy Richard Bruton: These amendments are of a drafting and technical nature and make no substantive change to the section.

Amendment agreed to.

Government amendment No. 60:

In page 34, line 28, to delete “complaint” and substitute “complaint or dispute”.

Amendment agreed to.

Government amendment No. 61:

In page 35, line 5, to delete “dispute” and substitute “complaint or dispute”.

Amendment agreed to.

25/02/2015V02300Senator Kathryn Reilly: I move amendment No. 62:

In page 35, line 5, after “dispute” to insert “, but only by teleconference in exceptional circumstances and when agreed to by the compliant”.

The amendment arises out of concerns that the Bill may provide too much latitude in the procedure to be adopted for mediation which may result in pursuance through teleconference. 263 Seanad Éireann This should only take place in exceptional circumstances such as where the employee no longer lives in the country.

25/02/2015V02400Deputy Richard Bruton: It is implicit that the consent of both parties is a prerequisite to all forms of mediation and case resolution. The Senator’s proposed amendment is, therefore, superfluous in this regard and inappropriate in so far as it focuses only on the claimant.

Amendment, by leave, withdrawn.

25/02/2015V02600Acting Chairman (Senator Pat O’Neill): Amendments Nos. 63 and 64 are logical alternatives. As amendments Nos. 63, 64 and 67 are related, they may be discussed together.

25/02/2015V02700Senator Kathryn Reilly: I move amendment No. 63:

In page 36, between lines 2 and 3, to insert the following:

“(9) Where the provision of subsection (5) applies the case resolution officer may direct either or both parties to produce such documents, statements or particulars to the other party as the case resolution officer shall determine to include but not limited to an outline of any evidence, witness or documents either party intends to rely upon.”.

The amendment provides for discovery. It has been pointed out to us by those representing employees that cases often do not get started on the first day of a hearing as the relevant documentation is unavailable. This measure would reduce the cost to the State of lost time and unnecessary delays in case progression.

25/02/2015V02800Senator David Norris: Amendment No. 64 again deals with the process of discovery, in other words, the revealing of documents by one side to the other. Where a resolution is not successful, it makes sense as regards ensuring any subsequent case that has to go for a hearing is dealt with in a speedy and efficient manner with the parties producing all relevant documentation to ensure the case may be resolved at the earliest date. Many cases do not get dealt with on the first day of a hearing because relevant documentation is not available. That creates a delay and a logjam.

This is another of the amendments put forward to me by Hayes & Co. and Senator Gerard P. Craughwell, which aims to speed up the process and the resolution of cases. It also means that in the case of an unsuccessful resolution meeting, parties will be aware of exactly what they need to bring to the hearing. In other words, it gives them advance notice of the way in which they need to be prepared prior to the hearing and this will inevitably reduce costs to the State. By being aware of what needs to be produced subsequently, this may well help to bring parties to a resolution when they see what works needs to be done to bring the case for hearing. This measure seeks to ensure efficiency in the conduct of the business.

25/02/2015V02900Senator Gerard P. Craughwell: I have been involved in several Labour Court hearings and cases before Rights Commissioners and where the information is available beforehand, the cases are frequently settled and never get to a hearing. I support Senator David Norris.

25/02/2015V03000Deputy Richard Bruton: Senator David Norris is confusing what we are dealing with. This is a mediation process, into which people enter voluntarily. The Senator is seeking in such a voluntary mediation process to give case resolution officers directive powers to compel the production of documentation and evidence to the other party that the party intends to rely on. That would be in conflict with a voluntary mediation process, which is an attempt to find 264 25 February 2015 a solution, from which both sides can withdraw and enter a full hearing if they are not happy with it, but bringing such compulsion into the process would be contrary to what is sought in the section. The provisions the Senator envisages are not appropriate to a mediated environment.

25/02/2015V03100Senator David Norris: I acknowledged that this is a mediation process in what I said. The reason I tabled the amendment is that where resolution is not successful, this provision looks forward to the hearing. It also provides that the case resolution officer “may direct either or both parties to produce such documents”. The person, therefore, who is in charge of the resolution process will make this determination in the interests of advancing a resolution. I do not see a huge conflict there.

25/02/2015V03200Senator Gerard P. Craughwell: I agree with my colleague. I fully understand where the Minister is coming from. Mediation requires commitment and honesty on both sides but there is no difficulty in having the officer running the case use his or her discretion to request both sides to begin exchanging documentation. That would not demean or work against the mediation process. It is no different from a High Court judge telling somebody to go away and think about his or her position overnight.

25/02/2015V03300Senator Ivana Bacik: I support the Minister. I appreciate where the Senators are coming from. Anyone involved in litigation will be aware of delays and the need to try to address this issue. Senator Gerard P. Craughwell referred to a High Court judge making orders. The difficulty in this context is that the amendments seek to give case resolution officers powers that are inappropriate.

I know that the Senator said this would only apply after the mediation has not resolved the complaint or dispute but it is still not appropriate that the person in charge of the mediation is the one to whom one is giving those powers. The Senator is right to look to attribute powers but it is being done in a way that is not appropriate.

25/02/2015W00200Deputy Richard Bruton: If one is entering into a voluntary process, one does not introduce powers to compel. They are in conflict in that one is attempting to bring the two sides together voluntarily to agree. The Senator is seeking to give compulsion powers. 2 o’clock It would drive people away from mediation because they would fear that if they went into it, they would suddenly be compelled to do this, that and the other and it would defeat the purpose of trying to use mediation as a better and more agreeable alternative to ultimate adjudication. I cannot accept the amendment.

25/02/2015W00300Senator Gerard P. Craughwell: We are not trying to provide for compulsion but to leave the discretion to the mediation officer to request the parties to cut the messing, exchange documents and see where they are. I understand from where the Minister is coming. On the one hand, it in a way argues against mediation but, on the other, it gives that discretionary power to the mediator. That is why I support the amendment. I understand from where the Minister is coming but I hope he understands my position on it.

25/02/2015W00400Deputy Richard Bruton: One cannot on the one hand issue a direction and then on the other hand say that the parties should have a chat.

25/02/2015W00500Senator Gerard P. Craughwell: The word “may” is there.

25/02/2015W00600Deputy Richard Bruton: The Senator should read the amendment.

265 Seanad Éireann

25/02/2015W00700Senator Ivana Bacik: The words “may direct” is giving a power of compulsion to a person, or an officer, to whom it is inappropriate to give that power. That is quite different to an adjudication officer, or a person in the role already described, somebody who is in a quasi- judicial position.

25/02/2015W00800Senator Gerard P. Craughwell: I may come back on Report Stage with that slightly amended to take out the word “direct”.

25/02/2015W00900Senator David Norris: I would look favourably on the amendment Senator Gerard P. Craughwell suggested to our amendment. However, I again point out to the Minister that this comes into effect when resolution has failed. It is not part of the mediation process but it is at the end of that process when resolution has failed. It means that it will obviate the situation where the process is further delayed by the non-availability of documents; therefore, it is not in- terfering with the mediation process. The mediation process continues and if it is unsuccessful, then the case resolution officer can direct or request. It is a bit of a bagatelle between the two but we would certainly look at the question of tabling an amendment with the word “request”. Perhaps the Minister might indicate whether he would look favourably on it if the word was changed to “request”.

25/02/2015W01000Deputy Richard Bruton: I would have to take advice. In any mediation, people will exchange freely and will talk to one another. However, it is a voluntary process and one does not seek to codify that in the way the Senator is seeking. I do not see why an informal process of that nature seeking to explore a voluntary solution should be tied up in requirements of the sort the Senator is seeking. I will certainly look at this again if the Senator tables an amendment on Report Stage. I will get advice from people who are more experienced than I but, intuitively, it does not sound sensible.

25/02/2015W01100Senator David Norris: The Minister should bear in mind that this is when the mediation process has failed and we are moving on inevitably to the next-----

25/02/2015W01200Deputy Richard Bruton: One cannot use the fact people entered mediation to grab powers that one would not have had if had they had not done so. The Senator is providing that people come in voluntarily and have a chat but then, before they leave, they must adhere to a number of requirements.

25/02/2015W01300Senator David Norris: If they are going ahead to a formal hearing, then it seems wise to say these are the documents they would need to have with them.

25/02/2015W01400Senator Ivana Bacik: We need to be clear about the appropriate forum. If one is talking about people moving on, subsequent to mediation having failed, to an adjudicative process, then clearly any directive powers would have to be attributed or connected to the adjudicative process and not the person engaged in the actual running of the mediation.

In terms of language, the words “request” or “direct” have the same sort of pre-emptory or compulsive meaning. The words “recommend” or “suggest” are probably closer to what the Senator is seeking to do but I still think there may be a problem as to where he is trying to park this power.

25/02/2015W01500Senator David Norris: I will park it in the place it will have the most efficient impact-----

25/02/2015W01600Senator Ivana Bacik: I think we disagree on where that is.

266 25 February 2015

25/02/2015W01700Senator David Norris: -----that is, between the end of the mediation process and the con- tinuation of the next process.

25/02/2015W01800Acting Chairman (Senator Pat O’Neill): Is amendment No. 63 being pressed?

25/02/2015W01900Senator Kathryn Reilly: In view of what has been said, I will not press the amendment at this point but might perhaps resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 64 not moved.

Section 39, as amended, agreed to.

SECTION 40.

25/02/2015W02400Acting Chairman (Senator Pat O’Neill): Amendment No. 65 in the name of Senator David Cullinane is related to amendment No. 87 and they may be discussed together.

25/02/2015W02500Senator Kathryn Reilly: I move amendment No. 65:

In page 36, between lines 17 and 18, to insert the following:

“(3) A complainant may, in proceedings before a mediation officer in respect of a complaint presented, or dispute reverted by an adjudication officer, by the complainant under this Part, be accompanied and represented by -

(a) a trade union official within the meaning of section 11 of the Act of 1990,

(b) an official of a body in respect of which the mediation officer, is satisfied represents the interests of employers,

(d) in the case of a complainant who is less than 18 years of age, the complainant’s parent or guardian in addition to a person specified inparagraph (a), (b) or (c),

and

(e) any other person with the permission of the mediation officer, as may be appropriate.”.

The reason behind this amendment is that it was very unclear if the right to be represented would be applicable to mediation. This amendment seeks to ensure it is.

25/02/2015W02600Deputy Richard Bruton: Mediation is an informal and voluntary process. It is better that the Bill remains silent on the question of representation at mediation and leaves it to the skill and experience of the mediator to manage the process. Either party may withdraw from the mediation process at any time. Therefore, I will not accept the amendment.

Amendment, by leave, withdrawn.

25/02/2015W02800Senator Kathryn Reilly: I move amendment No. 66:

In page 36, to delete lines 36 to 38, and substitute the following: 267 Seanad Éireann “(6) The terms of a resolution consequent upon a mediation conference under this section shall be binding on the parties and if either party contravenes any such term, in whole or in part, to the terms of the resolution then on an application for enforcement the District Court may make an order directing that person to carry out those terms, or as the case may be the terms to which the application relates; but the District Court shall not by virtue of this subsection, direct any person to pay any sum or do any other thing which (had the matter been dealt with otherwise than mediation) could not have been provided for.”.

There is concern that when an employer reneges on a mediated settlement, an employee would have to take a costly breach of contract action to the civil courts. This amendment seeks to ensure mediated settlements are enforced in the same manner as adjudicator Labour Court decisions are currently enforced.

25/02/2015W02900Deputy Richard Bruton: We are sympathetic to the idea of having enforcement of mediated settlements being effected in the District Court, where possible. I am pursuing the matter with the Attorney General to see if a Report Stage amendment can be introduced to that effect.

25/02/2015W03000Acting Chairman (Senator Pat O’Neill): Is amendment No. 66 being pressed?

25/02/2015W03100Senator Kathryn Reilly: In the light of what the Minister said, it is not being pressed.

Amendment, by leave, withdrawn.

Amendment No. 67 not moved.

Question proposed: “That section 40 be deleted.”

25/02/2015W03500Senator David Norris: Why is section 40 being deleted?

25/02/2015W03600Deputy Richard Bruton: As initially published, the Bill made separate provision for the referral of complaints and disputes to early resolution or mediation. This distinction has not been maintained. Section 39 has been amended to cover the referral of complaints and disputes for resolution by mediation officer. Section 40 effectively replicates section 39 and is, therefore, rendered superfluous and unnecessary. This is a more streamlined and efficient arrangement from an internal operational perspective. No reduction in the scope of the complainants’ and respondents’ access to early intervention will result accordingly and for the foregoing reasons, it will be necessary to delete section 40.

Question put and agreed to.

SECTION 41.

25/02/2015W03900Senator Kathryn Reilly: I move amendment No. 68:

In page 37, between lines 32 and 33, to insert the following:

“(c) Any person appointed as an adjudication officer immediately after the commencement of this Part will be required to be adequately trained in the area of equality legislation, in addition to all relevant industrial relations and employment law.”.

The Equality Rights Alliance has raised a number of concerns with this legislation in that not all of the employment cases will fall into once specific area. ICTU has raised similar concerns. 268 25 February 2015 For example, a case dealing with a breach of employment law may also have a discrimination dimension. The Equality Tribunal does not operate like an ordinary court in that it investigates cases and equality officers have wide-reaching powers, such as compelling witnesses. It is not reliant on legal arguments presented by the complainant or the respondent. Cases of discrimination are unique in that the burden of proof passes to the respondent once a complaint is made of a prima facie case of discrimination. In short, there is a concern that future adjudication officers would not be adequately trained to deal with equal status cases.

25/02/2015X00100Senator Ivana Bacik: I appreciate the spirit of this amendment because it is reflects an issue I raised on Second Stage with the Minister of State, Deputy Gerald Nash, namely, my concern to ensure the equality function of the new entity is not downgraded. Indeed, I suggested at one point that we should consider putting the word “equality” into the name of the new body, because equality law and the equality jurisprudence that has been built up are very important. I was assured on Second Stage by the Minister of State that the new structures, which were generally welcomed as being much more streamlined and sensible, would not in any way lead to a deprioritising of the equality measures or the equality expertise that has been built up among the equality officer staff. While I appreciate the spirit of the amendment, as I said, I hope it will not be necessary to make this provision. Nevertheless, I look forward to the Minister’s response. It is important that we ensure our equality jurisprudence is not deprioritised under the new entity.

25/02/2015X00200Deputy Richard Bruton: I give the Senator that assurance. The Public Appointments Ser- vice has carried out a competition and we now have a range of persons, including experienced industrial relations officers, HR practitioners, employment lawyers and civil servants with appropriate skill and experience. This will ensure a diversity among the ranks of adjudicating officers. In addition, a course is being run by the National College of Ireland covering employment equality, industrial relations law, administrative law, human rights law, and instruction on how to conduct inquisitorial hearings and write comprehensive and reasoned decisions. Only those candidates who pass that course will be appointed as adjudication officers. To enshrine what should and should not be taught would be inflexible and create unnecessary rigidities in the system. A great deal of preparatory work went into designing the course and its execution is explicitly concerned with meeting the concerns of Senators and ensuring people who take a case will have it dealt with by officers with a proven competence in this area.

Amendment, by leave, withdrawn.

Section 41 agreed to.

SECTION 42.

25/02/2015X00600Acting Chairman (Senator Pat O’Neill): Amendments Nos. 69, 70 and 73 are cognate and may be discussed together.

Government amendment No. 69:

In page 38, line 27, to delete “sections 37 and 40” and substitute “section 39”.

25/02/2015X00800Deputy Richard Bruton: These are technical amendments.

Amendment agreed to.

Government amendment No. 70:

269 Seanad Éireann In page 38, line 33, to delete “sections 37 and 40” and substitute “section 39”.

Amendment agreed to.

25/02/2015X01200Acting Chairman (Senator Pat O’Neill): Amendments Nos. 71, 72 and 92 are related and may be discussed together.

25/02/2015X01300Senator David Norris: I move amendment No. 71:

In page 38, lines 36 and 37, to delete “any trade union of which the agency worker is a member” and substitute “specified persons”.

Although this amendment proposes to deleted the reference to trade union representation, it may be appropriate to retain it. The amendment was suggested to me by Senator Gerard P. Craughwell, and we may well put down an amendment on Report Stage which tweaks the proposal in order to include the original reference as well as the new reference to “specified persons”. The intention here is to permit a solicitor, as well as a trade union or other representative, to submit claims on behalf of a client. This could be important where, for example, a person has difficulty with reading, writing or comprehending a very complicated form. Some complaints can be quite technical and an adviser might well need to assist the complainant in completing the documentation and submitting it online. To avoid problems, it is reasonable to amend the section to extend the cohort of persons who can submit a complaint. The intention is clearly to extend the possibilities of representation, not to prevent trade union representatives from performing that role. Our concern is to ensure complainants have access to the assistance they need.

25/02/2015X01400Senator Gerard P. Craughwell: As Senator David Norris stated, the reference to trade union representation should be retained. Our concern in bringing forward the proposal was the awareness that migrant workers, in particular, might not necessarily have such representation. With Senator Norris’s permission, I will withdraw amendment No. 71 and resubmit it on Report Stage in a new format which refers both to a trade union representative and-or specified persons.

I take the opportunity to note that the Irish Congress of Trade Unions is very grateful to the Minister for an amendment made in the Dáil to include the right of workers to be represented by their union in proceedings before an adjudicating officer of the Labour Court. However, a further amendment is required in this regard to section 42 (11), which I intend to bring forward on Report Stage, to include trade union representation at mediation as well as at proceedings before an adjudicating officer of the Labour Court.

25/02/2015X01500Senator Kathryn Reilly: Amendment No. 72 seeks to ensure agency workers are afforded the same representation rights as regular employees.

25/02/2015X01600Deputy Richard Bruton: Amendments Nos. 71 and 72 seek to include a provision in section 42(3) which would make it implicit that a practising barrister or solicitor or, where a complainant is under 18 years of age, his or her parent and guardian, in addition to an agency worker or any trade union of which the agency worker is a member, would be entitled to present a complaint to the director general under the Protection of Employees (Temporary Agency Work) Act 2012. The proposed amendments are superfluous as it is well established in law that a complainant is entitled to instruct his or her legal representative or any other agent to act on his or her behalf. This would include, for example, submitting a complaint form on the claim- 270 25 February 2015 ant’s instructions. Therefore, I do not propose to accept the amendments.

25/02/2015X01700Acting Chairman (Senator Pat O’Neill): Do Senators David Norris and Gerard P. Craugh- well propose to withdraw amendment No. 71?

25/02/2015X01800Senator David Norris: If our proposal is deemed unnecessary, why is it necessary to make reference to “any trade union of which the agency worker is a member”? Why specify anything if it is already rehearsed in existing law?

25/02/2015X01900Deputy Richard Bruton: Section 42 creates a common procedure for the presentation of complaints and referral of disputes under employment legislation to the director general of the workplace relations commission. The individual employment enactments under which a person may present a complaint or refer a dispute are listed in Schedule 5. This section provides for a standardised time limit of six month, extendable to 12 months for reasonable cause. All first-instance complaints requiring adjudication will be heard by WRC adjudication officers. Where a case is referred for hearing, it will be assigned by the director general to a WRC adjudication officer. The role of the latter will be to hold a hearing where both parties are given the opportunity to be heard and decide the matter. Parties will be free to represent themselves or choose their own representation. All appeals will lie to the Labour Court, except in the case of complaints under the Equal Status Act, where the appeals will lie to the Circuit Court.

I am not sure why we have chosen specifically to single out in the case of an agency worker the possibility that he or she could avail of trade union representation. I will have to find out why we have made provision to explicitly deal with the trade union representation when it is implicit that they can choose anyone they like. I will come back to the Senator on Report Stage.

25/02/2015Y00200Senator David Norris: I would be very grateful if the Minister would look at that and come back to us. It seems absurd. He said initially that it is not necessary to specify any of these things because they were rehearsed in previous law, but it does clearly specify “a trade union official within the meaning of section 11 of the Act [...] an official of a body in respect of which” and so on, “a practising barrister or practising solicitor”, and “the parent or guardian”. I do see that he has “e) any other person with the permission of the adjudication officer or Labour Court”-----

25/02/2015Y00300Deputy Richard Bruton: I will have to come back to the Senator. I do not understand it myself.

25/02/2015Y00400Senator David Norris: That is fine. I thank the Minister.

Amendment, by leave, withdrawn.

25/02/2015Y00600Senator Kathryn Reilly: I move amendment No. 72:

In page 38, line 37, after “member,” to insert the following:

“or a practising barrister or practising barrister or solicitor, or in the case of a complainant who is less than 18 years of age, the complainant’s parent or guardian”.

Amendment put and declared lost.

Government amendment No. 73:

In page 39, line 1, to delete “sections 37 and 40” and substitute “section 39”. 271 Seanad Éireann Amendment agreed to.

Government amendment No. 74:

In page 39, between lines 6 and 7, to insert the following:

“(4) The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of section 43 by the Labour Court.”.

25/02/2015Y01300Acting Chairman (Senator Pat O’Neill): There is a typographical error in the number list in the footnote provided for the information in relation to amendment No. 74. The footnote should refer to amendment No. 94, rather than amendment No. 95. Amendments Nos. 74 and 94 form a composite proposal and may be discussed together.

25/02/2015Y01400Deputy Richard Bruton: Section 43 provides that if a case has been dismissed by an adjudication officer on the grounds that it is frivolous or vexatious, the complainant will have the right to appeal this decision to the Labour Court. The Labour Court, upon hearing an appeal, may affirm the decision of the adjudication officer or annul that decision and refer the complaint back to the adjudication officer concerned for a decision in relation to the complaint or dispute. Amendment No. 74 inserts a new subsection to specifically cover complaints or disputes that are referred back to the director general by the Labour Court following a successful appeal to it by a complainant whose complaint or dispute was dismissed by an adjudication officer under section 43(1).

Amendment agreed to.

25/02/2015Y01600Acting Chairman (Senator Pat O’Neill): Amendments Nos. 75 and 76 are related and may be discussed together.

25/02/2015Y01700Senator Kathryn Reilly: I move amendment No. 75:

In page 39, between lines 15 and 16, to insert the following:

“(iv) make a decision that a separate hearing for an employment equality case is required, in addition to a general employment rights decision,”.

In terms of amendment No. 75, the Equality Rights Alliance has warned that not all employment cases before the commission will fall neatly into an area, as I mentioned earlier. How will adjudication officers determine an equality claim where they have parallel investigative powers under section 79 of the Employment Equality Act and proceed to hear other aspects of the case where they have no similar powers? Similarly, section 95 of the Employment Equality Act 1998-2012 provides equality officers and the director of the Equality Tribunal with the power to compel witnesses. Again this legislation does not do so for employment law breaches.

On amendment No. 76, the Equality Rights Alliance has warned that this Bill is devoid of reference to claims under the Equal Status Acts and how such cases will be dealt with.

25/02/2015Y01800Deputy Richard Bruton: This amendment would go against what the Bill is trying to achieve, by providing a single fast, effective, independent and streamlined adjudication process. It proposes that a separate hearing would be convened to deal with the equality aspects of a case, separate from the employment aspects. If there was an employment and an equality

272 25 February 2015 aspect to the case, this could result in four separate hearings, two at first instance and two at appeal. There is no justification for this. It would add to the cost to the employer, the employee and the State. As I indicated earlier, we are providing that the adjudication officers would have suitable skills and training to deal with all cases that would come before them.

Amendment, by leave, withdrawn.

Amendment No. 76 not moved.

25/02/2015Y02100Senator Kathryn Reilly: I move amendment No. 77:

In page 39, between lines 23 and 24, to insert the following:

“(5) Where the claimant and respondent agree the adjudication officer may revert the dispute for mediation by a mediation officer.”.

This amendment provides flexibility in the system, where both parties agree to have the case reverted to mediation.

25/02/2015Y02200Deputy Richard Bruton: Amendment No. 77 proposes that an adjudication would be halted and referred back to the mediation, with the consent of both parties. To refer the dispute formally back to mediation would add time and cost to the entire process. It would possibly be twice as expensive to the State, given that there would be the cost of the first mediation, the first adjudication, the cost of mediation where the case is referred back and the cost of a second adjudication if mediation is not successful. We have provided that both parties have the option of engaging in mediation before adjudication. They have the opportunity to reach an agreement and withdraw the case before it goes to adjudication. Both parties have the option of reaching an agreement and withdrawing the case during the adjudication hearing. In practice, an adjudicator would adjourn for a short period to facilitate this. Creating this new loop the Senator is suggesting, of going right back to mediation, would add cost. The flexibility is already in the adjudication process to allow some informal discussions to seek an outcome where they have decided that is possible.

Amendment, by leave, withdrawn.

25/02/2015Y02400Acting Chairman (Senator Pat O’Neill): Amendments Nos. 78 to 81, inclusive, are cognate and may be discussed together.

25/02/2015Y02500Senator Kathryn Reilly: I move amendment No. 78:

In page 39, line 26, to delete “6 months” and substitute “2 years”.

The four amendments are essentially just to extend the length of time for which complaints may be submitted from the date of contravention from six months, as set out in the legislation, to two years.

25/02/2015Y02600Deputy Richard Bruton: Subsections (6) and (8) of section 42, read together, provide that the standard limitation period for bringing a complaint under employment and equality legislation will be six months from the relevant date, extendable for a further six months by an adjudication officer where the complainant has demonstrated reasonable cause for his or her delay in initiating the complaint. The Senator’s proposed limitation period of two years with an additional six months extension would be unworkable from a practical point of view. It

273 Seanad Éireann would be inconsistent with the key principle running through the reforms, which the Bill seeks to achieve, namely, the resolution of employment-related complaints and disputes as close to the workplace as possible and at the earliest possible date. I consider that a period of two years within which to refer a complaint to the workplace relations commission would be unnecessarily long and unreasonable. Such a proposal would also be inconsistent with the employment legislation in other EU member states. Therefore, I am not going to accept the amendments.

Amendment, by leave, withdrawn.

Amendments Nos. 79 to 81, inclusive, not moved.

Government amendment No. 82:

In page 41, between lines 2 and 3, to insert the following:

“(9) An adjudication officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in proceedings under this section or to produce to the adjudication officer any documents in his or her possession, custody or control that relate to any matter to which those proceedings relate.

(10) A person to whom a notice under subsection (9) is given shall be entitled to the same immunities and privileges as those to which he or she would be entitled if he or she were a witness in proceedings before the High Court.

(11) A person to whom a notice under subsection (9) has been given who—

(a) fails or refuses to comply with the notice, or

(b) refuses to give evidence in proceedings to which the notice relates or fails or refuses to produce any document to which the notice relates, shall be guilty of an offence and shall be liable, on summary conviction, to a class E fine.”.

25/02/2015Y03000Deputy Richard Bruton: This amendment is being introduced to give an adjudication officer the power to summons witnesses, along with documents if required, to attend and give evidence at the hearing into a complaint or dispute. It shall be an offence for a person so sum- monsed not to appear before the adjudication officer at the hearing of the case.

Amendment agreed to.

25/02/2015Y03200Acting Chairman (Senator Pat O’Neill): Amendments Nos. 83 and 99 are cognate and amendment No. 99 is a physical alternative to amendment No. 98. Amendments Nos. 83, 98 and 99 may be discussed together.

25/02/2015Y03500Senator David Norris: I move amendment No. 83:

In page 41, line 4, to delete “otherwise than in public” and substitute the following:

“in public save:

(a) where the Adjudication Officer considers it appropriate to hear the matter otherwise than in public; or

(b) where both of the parties agree that it shall be heard in private”. 274 25 February 2015 I see that amendment No. 98 is a Government amendment. The Government is going a certain way towards meeting the intentions of our amendment. I welcome that. The Bill as it stands states, “Proceedings under this section before an adjudication officer shall be conducted otherwise than in public”. In other words, it will be conducted in private. There is an argument that proceedings should be in public for the information of the public and for the ventilation of the serious issues involved. There is also an argument that the parties involved should be in a position to consent to having them heard in public. There is a balance between public and private here. Significant issues of justice may be dealt with by an adjudication officer, so it is important that there is potential for these to be heard in public. The public is entitled to see the administration of justice and to understand the issues involved.

It is suggested it is best that the parties have an input into whether a hearing is held in public. That means that there is a certain amount of agreement, in that the contending parties agree that this is an important matter that must be ventilated in public and, therefore, give their consent, whereas, in general, the legislation suggests it be held in private. In this instance, the amendment holds that it should be held in public. It states it should be held in public save “where the Adjudication Officer considers it appropriate to hear the matter otherwise than in public”. In other words, it is the responsibility of the adjudication officer. The second qualification is when both parties agree or, in other words, where there is consent. It is welcome that in amendment No. 98 the Minister goes some way towards meeting the intention of the amendments and I would be interested to hear him elaborate further on this issue.

25/02/2015Z00200Deputy Richard Bruton: A lot of thought went into this and the approach was that the first instance proceedings should be held in private and the appeal to the Labour Court in public, unless there were exceptional circumstances. This is what is provided for in amendment No. 98. I can give the detailed response to Senators. The question of whether first instance proceedings should be heard in private or public was the subject of considerable consideration by my Department during the various consultations it conducted with interested parties prior to the drafting of the Bill. The overwhelming consensus was that first instance matters ought to be continued to be heard otherwise than in public, as is the case with matters that come before rights commissioners or an equality officer. To introduce a provision whereby the adjudication officer hearing a complaint at first instance or the parties themselves could determine otherwise would be to introduce unnecessary contributions into the process, which would give rise to a judicial review. In order to ensure compliance with a party’s entitlements under Article 6 of the European Convention on Human Rights, ECHR, when an issue of legal entitlement is disputed, I am advised that appeal hearings by the Labour Court must be conducted in public. Labour Court hearings dealing with appeals of a workplace relations commission, WRC, adjudicator in employment rights and equality cases will be held in public, thus ensuring compliance with the requirements of Article 6 of the ECHR, other than cases in which there are exceptional circumstances justifying a departure from this practice such as a complaint of discrimination on disability grounds or cases involving allegations of sexual harassment. I accept hat the current wording of section 45 does not make it clear that the Labour Court will have the power to hear cases in private in exceptional circumstances. I am, therefore, bringing forward amendment No. 98 to make it absolutely clear that the Labour Court will have the power to hear a case in private in exceptional circumstances. Hearings dealing with disputes of interest - this pertains to industrial relations - will continue to be heard in private by the Labour Court.

25/02/2015Z00300Senator David Norris: I thank the Minister who stated it was unnecessary, fussy or unnecessarily complicated. However, the amendment does not appear to be unnecessarily com-

275 Seanad Éireann plicated. It would simply provide that hearings be held in public except where the adjudication officer considered it appropriate to hear it in private or when both parties consented. If both parties consent, where is the disagreement? It is perfectly simple; consequently, I do not discern any difficulty in this regard.

25/02/2015Z00400Deputy Richard Bruton: I am only repeating the current process, which is in private. That is the way it has worked and it has worked very successfully. I do not feel the need to change it, but I am making sure that if this is not satisfactory and the matter is appealed, there is a right to have the case heard in public. Moreover, at the appellate stage, it will be held in public, which is in accordance with best practice under the European Convention on Human Rights. The use of a rights commissioner is an informal process. It is not a highly legalistic process and has worked well in private. However, it leaves both parties with the right of appeal and if the case is appealed, the issues at stake will be discussed in public. It is working well and should be left to work in the way it has done.

25/02/2015Z00500Senator David Norris: The Minister is stating he is doing what he has been instructed to do under European Community legislation. That is fair enough and I have no problem with it. However, where both parties consent to the proceedings being heard in public, that appears to be perfectly reasonable.

25/02/2015Z00600Deputy Richard Bruton: The system is working well and offers the right to people who are not satisfied with what comes out of a private informal hearing to have the case heard in public in an appellate body. If it is not broken, one should not fix it.

25/02/2015Z00700Senator David Norris: I wondered when that cliché would emerge.

Amendment, by leave, withdrawn.

25/02/2015Z00900Senator David Norris: I move amendment No. 84:

In page 41, line 8, after “section” to insert the following:

“and shall keep a register of all decisions available for inspection for such fee as shall be determined by the Minister”.

This is about keeping a register. While it is useful to provide for publication on the Internet, every single decision may not be published for whatever reason. Consequently, it is contended that there should be a register of decisions that would be available for inspection. While there would, of course, be a fee, it would be determined by the Minister.

25/02/2015Z01000Deputy Richard Bruton: The Bill states every decision will be published on the Internet. The Senator’s proposal is inappropriate, having regard to the requirement on the commission to publish every decision of an adjudication officer on the Internet. It would place an unnecessary additional administrative and financial burden on the commission to maintain a physical register of decisions, in addition to requiring it to publish decisions on the Internet.

Amendment, by leave, withdrawn.

25/02/2015Z01200An Cathaoirleach: As amendments Nos. 86 and 87 are physical alternatives to amendment No. 85 and amendments Nos. 85 and 101 are related, amendments Nos. 85 to 87, inclusive, and 101 may be discussed together, by agreement. Is that agreed? Agreed.

276 25 February 2015 Government amendment No. 85:

In page 41, to delete lines 9 to 20 and substitute the following:

“(11) (a) In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, under this Part, the complainant or respondent to the complaint or dispute (including a complainant or such a respondent to whom paragraph (b) applies) may be accompanied and represented by—

(i) a trade union official within the meaning of section 11 of the Act of 1990,

(ii) an official of a body that, in the opinion of the adjudication officer, represents the interests of employers,

(iii) a practising barrister or practising solicitor, or

(iv) any other person, if the adjudication officer so permits.

(b) In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, under this Part, the complainant or respondent to the complaint or dispute may, if he or she has not yet attained the age of 18 years, be accompanied and represented by his or her parent or guardian.”.

25/02/2015Z01400Deputy Richard Bruton: The provisions of this subsection, as published, created some ambiguity about the range of persons who would be permitted to accompany or represent a complainant or respondent at proceedings before an adjudication officer and the Labour Court. The wording, as published, also could be read as vesting in the adjudication officer or the La- bour Court the power to determine whether a particular person could accompany or represent a party appearing before him, her or it. This was not intended. However, I am satisfied that the amendment which I have already have to this subsection in the Dáil removes the ambiguity in both respects by specifying in detail the full range of persons by whom a party may choose to be accompanied or represented and by identifying carefully the specified matters in which an adjudication officer or the Labour Court may exercise discretion, that is, in accepting whether a body that purports to so do, in fact, represents the interests of employers and whether, in respect of a particular complaint, it is appropriate to permit some other person who does not come within the categories listed at paragraphs (a) to (d) to represent a party in respect of that complaint.

I am also bringing forward the further amendment to section 42(11) on Committee Stage in the Seanad to clarify that the provisions of this subsection on the right to representation at hearings before the adjudication officer and the Labour Court apply equally to both complainants and respondents. I am bringing forward this amendment to remove any possible misinterpreta- tion of the current wording.

Amendment No. 101 is a similar amendment to amendment No. 85 and makes provision for a new subsection (13) in section 45 that expressly sets out rights of parties in an appeal before the Labour Court to be represented by a representative of their choice.

25/02/2015Z01500Senator David Norris: I refer to the reason Senator Gerard P. Craughwell and I seek to delete this proposal and point out again that the proposed section 42(11)(a)(iv) states “any other person, if the adjudication officer so permits”. That is where we would have included a specified person. It is not up to the adjudication officer to have this discretion. I do not agree that he or she should have the discretion to disallow. It should be the complainant who has the right to 277 Seanad Éireann appoint the person to represent him or her. Why should an adjudication officer have the right to determine who shall represent a complainant? The complainant should make that decision.

25/02/2015Z01600Senator Gerard P. Craughwell: Again, I am concerned that the same provision is not being made available for mediation as for cases before adjudication officers and the Labour Court. Some mediation solutions are extremely complex and to expect a person to be present without representation is wrong in every way. Unless I misheard the Minister, I do not detect any provision for representation in mediation and if that is the case, I will raise the matter again on Report Stage.

25/02/2015AA00200Deputy Richard Bruton: We have already dealt with this issue. Mediation is a voluntary process and people are free to be represented in any way they choose.

I thought I had answered Senator David Norris’s point in my original remarks. Essentially, we are removing the ambiguity as to what the power is and confining it in order that the Labour Court or an adjudication officer has discretion in accepting whether a body which purports to do so, in fact, represents the interests of employers and whether, in respect of a particular complaint, it is appropriate to admit some other person who does not come within the categories listed in subparagraphs (i) to (iv) in the amendment such as a trade union official to represent a party in respect of that complaint.

25/02/2015AA00300Senator David Norris: The Minister has not really answered my point that it is the right of a complainant to appoint the person he or she regards as being most suitable to represent him or her in such a process. It states very clearly “any other person if the adjudication officer so permits”. That is where we proposed inserting the words “specified person”. It is not appropriate for the adjudication officer to choose the representative for the complainant. That is the simple point at issue.

25/02/2015AA00400Senator Gerard P. Craughwell: There are two types of mediation. One type is one-to- one honest brokerage which takes place between two people, but the Irish Congress of Trade Unions talks about mediated solutions which apply right across an industry or a particular employer. Congress is very anxious that we cover mediation in the provisions for representation. I have read the Minister’s amendments and reserve the right to raise my concerns on Report Stage, after I have liaised with congress to see if it is happy with them. Mediation has to be ring-fenced, too.

25/02/2015AA00500Deputy Richard Bruton: As Senator David Norris said, a person may be accompanied and represented by a trade union official, an official of an employers’ body, a practising barrister, a solicitor or any other person if the adjudication officer so permits. There are only limited circumstances where the adjudication officer would not so permit and the adjudicating officer cannot whimsically exclude a person who has been chosen. However, as I do not think that is adequately explained in paragraph (b), I will revert to the Senator on the matter.

25/02/2015AA00600Senator David Norris: I would be grateful if the Minister would do so. The principle is that it is up to the complainant to decide who should represent him or her. A person is hardly going to employ some sort of a dingbat, but I am talking about somebody who might have a difficulty in reading or writing, or a language difficulty or lack familiarity with the culture, etc. I would be grateful if the Minister would look at this issue again because it does not seem to be appropriate that the adjudication officer should be in a position to actually determine who should act as a representative and disallow somebody’s choice. If a complainant wants to be

278 25 February 2015 represented by somebody, the power to disallow that person is not appropriate for an adjudication officer to have.

25/02/2015AA00700Senator Gerard P. Craughwell: An adjudication officer and the Labour Court make a finding of right or wrong in the case of a particular complaint. In the case of mediation we are talking about two parties sitting down and negotiating. We have to have a section on the rights to representation in mediation.

25/02/2015AA00800Deputy Richard Bruton: That is not what we are debating. Amendment No. 85 has nothing to do with mediation.

25/02/2015AA00900Senator Gerard P. Craughwell: I am talking about proceedings prior to a case coming before an adjudication officer.

25/02/2015AA01000Deputy Richard Bruton: We have dealt with that issue.

25/02/2015AA01100Senator Gerard P. Craughwell: Congress has requested that we insert a section in this part of the Bill which deals with mediation.

25/02/2015AA01200Senator David Norris: If the complainant is comfortable with a person representing him or her, who is the adjudication officer to quibble with this and second guess the complainant? The representative may be there to act as an assistant, a support, a crutch or an adviser and if the complainant believes he or she is the most appropriate person for the job, that is the case. I look forward to the Minister coming back to us on that matter.

25/02/2015AA01300An Cathaoirleach: Is amendment No. 85 agreed to?

25/02/2015AA01400Deputy Richard Bruton: I seek to insert it, but I will come back to the Senator on Report Stage to clarify why we are taking that power.

25/02/2015AA01500Senator David Norris: Perhaps there might be a deletion of the reference to the adjudication officer permitting the appointment. Alternatively, I would appreciate an explanation of the circumstances where an adjudication officer could make such a determination. I am sure there will be very few such circumstances and I cannot think of any in which it would be appropriate for an adjudication officer to say a person could not be represented by the person he or she had chosen. That is wrong.

Amendment put and declared carried.

25/02/2015AA01700An Cathaoirleach: Amendments Nos. 86 and 87 cannot be moved.

25/02/2015AA01800Senator David Norris: Why can amendment No. 86 not be moved? Is it because it depends on the previous amendment?

25/02/2015AA01825An Cathaoirleach: Yes, it has been decided by amendment No. 85.

Amendments Nos. 86 and 87 not moved.

25/02/2015AA01900An Cathaoirleach: Amendments Nos. 88 to 91, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

25/02/2015AA02000Senator David Norris: I move amendment No. 88:

In page 41, line 27, after “appropriate” to insert the following: 279 Seanad Éireann “without prejudice to the forgoing the Minister may in consultation with the Chair- man of the Labour Court make such regulations relating to representatives of a complainant or a respondent to include the terms of engagement but not limited to contingency fees or percentage fees, evidence of indemnity insurance of a minimum figure as specified by the Minister per complainant or respondent represented and as to the standard of conduct of such representative or representatives in cases before an adjudication officer or the Labour Court and such other matters as he or she in consultation with the Chairman of the Labour Court considers appropriate”.

While it is already the case that accountants and solicitors are regulated by a regulatory body and will in the future be regulated under the legal services Bill, representatives for gain are unregulated. They are entitled to charge percentage and contingency fees and engage in cham- perty, which is illegal for a solicitor. There is, therefore, a clear difference between those who are regulated and those who are not. The former have specified charges, whereas the latter can charge whatever they like. They do not have to have indemnity insurance, but many will adver- tise that they provide legal services. It is important that these entities are regulated. There are many non-legal entities, by which is meant non-solicitors, counsel, trade unions or employee representative bodies with a negotiating licence that provide an excellent service. Many do not claim to be legally qualified or to provide legal services and will have insurance. In order to have a world-class service, there is a requirement that those providing services for gain be in some way regulated in order that minimum standards can be expected. This is a protection for employers and employees. If people pay for representation services, the representative should have to meet certain minimum standards.

Again, I am talking about the creation of a level playing field. If one group of professional, competent people is regulated, why is there free determination for people who are not regulated, not qualified and not professionally engaged? I have no problem with them engaging for hire, but it is inappropriate for them not to be regulated. It is fair to both employers and employees for there to be a degree of control in order that people who avail of the services of such persons know what they are getting, thus ensuring their rights are protected under law and that they are not left open to cowboys. This does not mean that all of the people in the unregulated category are cowboys, but some may be and I have tabled this amendment to address the point.

25/02/2015AA02100Deputy Richard Bruton: To some degree, the Senator’s amendment reverses the position on the adjudication officer, where the Senator advocated allowing any person to be selected as a representative for a person. The Senator is seeking a detailed regulatory environment to be established for any such person and it is not entirely consistent. Our view is that it is not for the Labour Court to set out the professional bodies, specify how lawyers are regulated or refer to regulatory bodies. The Labour Court adjudicates on disputes that come before it. What the Senator proposes would go way beyond the scope of the Bill to regulate many bodies that might purport to represent people in different circumstances. It would involve the Labour Court in detailed work that is not appropriate to its core purpose.

Amendment, by leave, withdrawn.

Amendments Nos. 89 to 92, inclusive, not moved.

25/02/2015BB00400Senator David Norris: I move amendment No. 93:

In page 41, between lines 36 and 37, to insert the following:

280 25 February 2015 “(15) In the event of a party issuing a complaint under section 4 of the Data Protec- tion Act 1988 (as amended) and the other party failing to provide any documentation in whole or in part which the party who failed to supply such documentation subsequently wishes to rely on in any case before an adjudicating office or on appeal to the Labour Court that party shall be precluded from producing or relying on such documentation.”.

This follows legal procedure in a situation in which discovery is not made and the court does not have information referred to it. In such a case, a late discovery is usually precluded. There are no discovery procedures and none are proposed. Many employees will issue a notice under the Data Protection Acts 1988 and 2003. They then come for a hearing and find documentation which had not been produced is subsequently produced. Such a surprise disclosure of information at a late date in proceedings wrong foots people and is very unfair to them. It means a case must be adjourned to enable the individual to review the documentation and, if necessary, submit a further complaint to the Data Protection Commissioner to check whether there is any other relevant documentation which he or she has not received. Again, it comes back to the question of disclosure. For the purpose of saving costs, it seems reasonable that a party who does not comply with a statutory provision to produce documentation should not subsequently be able to rely upon the same in any case. This has happened in cases in which information has been deliberately suppressed until a late stage in a case in order to wrong foot the other side. This tactic is wrong. An alternative to this would be to provide that where a request made under the Data Protection Acts 1988 and 2003 is not complied with, and documentation is subsequently produced to an adjudication officer, it would be an offence which the adjudication officer would report. This may ensure appropriate documentation is produced in advance and avoid unnecessary adjournments of cases. It is all about the production of documents and the idea that one side can withhold documents and produce them suddenly, like a Jack-in-the-box, to wrong foot the other side.

25/02/2015BB00500Deputy Richard Bruton: In proceedings in which it is alleged that a respondent is seeking to rely on personal data of the complainant which it failed to supply to the complainant on foot of a data access request by him or her, it is for an adjudication officer or the Labour Court to determine how best to conduct the proceedings, having regard to the overriding need to do justice and be seen to do justice to all parties. In particular, there is nothing in law preventing an adjudicator or the Labour Court from having specific regard to a respondent’s failure to meet a claimant’s data access request. We are not precluding it ab initio, as in the Senator’s amendment, but leaving it to the discretion of the adjudication officer in seeking to get a fair outcome. It is a reasonable approach.

25/02/2015BB00600Senator David Norris: The Bill would leave a black hole. There is nothing that would prevent it, or say it is an incorrect or bad practice or that the adjudication officer should take a certain line. It is manifestly unfair and wrong for one side to conceal information and then spring it on a person at a later date. Even if it leads to an adjournment to allow the other side to become conversant with the facts, it results in delay. It should not be allowed. Perhaps there might be exceptional circumstances, although I cannot imagine what they would be, in which information emerges at a later date, and this could be provided for. While the Minister said there is nothing in the legislation to prevent an adjudication officer, there is nothing to encourage or suggest it is open to him or her, and there should be. This is bad practice. I ask the Minister to re-examine this. It is all very well to say it is not in the Bill but there is nothing to prevent it happening. With such reasoning, we would have no legislation at all but would say there is nothing to stop everything happening and people can do what they want.

281 Seanad Éireann

25/02/2015BB00700Senator Gerard P. Craughwell: I support Senator David Norris. We have all seen cases in which last minute documents suddenly appear and change the entire course of a case. It is not reasonable in any industrial relations case. It is a perfectly reasonable amendment and I cannot see why the Minister does not accept it.

25/02/2015BB00800Deputy Richard Bruton: Our case is also perfectly reasonable. The Labour Court would judge this as part of the overall picture in which a case is being presented and take cognisance of how it is being produced at the last moment. In deference to the Senators, I will speak to people who are professionally engaged in such work to see why we have it formulated as we have. The Bill gives more discretion than the Senators’ amendment, which precludes such evidence, which may be key to getting a fair outcome, from coming into play. I will seek the views of people who are experienced in the area.

25/02/2015BB00900Senator David Norris: On foot of the advice the Minister receives, if it is of a certain nature, he might consider introducing a more nuanced amendment on Report Stage.

Amendment, by leave, withdrawn.

Question proposed: “That section 42, as amended, be agreed to.”

25/02/2015BB01100Deputy Richard Bruton: I inform the House that I intend to introduce amendments to sections 42(6)(a) and 42(6)(c) on Report Stage. These amendments are necessary to incorpo- rate amended definitions of certain terms in the Maternity Protection Acts and Adoptive Leave Acts which are being incorporated into those Acts by the Children and Family Relationships Bill 2014. I will also introduce a number of technical and drafting amendments to section 42 on Report Stage.

Question put and agreed to.

SECTION 43.

Government amendment No. 94:

In page 42, to delete lines 11 and 12 and substitute the following:

“(b) annul that decision and refer the complaint or dispute to the Director General.”.

Amendment agreed to.

Question proposed: “That section 43, as amended, stand part of the Bill.”

25/02/2015BB01600Senator Gerard P. Craughwell: I wish to speak to the section. The dismissal of a claim by an adjudication officer is part of the section. Section 43 provides that “An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 42 if he or she is of the opinion that it is frivolous or vexatious.” The exclusion has never applied to complaints referred under the Industrial Relations Acts and is contrary to the purpose of resolv- ing individual disputes arising in the workplace. Dismissing individual referrals made under the Industrial Relations Acts is counterproductive. I would be very concerned, as is ICTU, that applying these criteria would undermine the ability of unions to have individual cases referred under the Industrial Relations Acts heard. The unintended consequence is likely to be an increase in collective action, given that a vital dispute resolution avenue will be removed. Other complications may arise in the context of the requirement to exhaust all procedures. ICTU,

282 25 February 2015 therefore, seeks an amendment to clarify that referrals to individual disputes under the Indus- trial Relations Acts cannot be refused on the basis that they may be vexatious or frivolous.

What congress advises the Minister through me here is that it is unlikely that a trade union or practising solicitor or barrister will bring vexatious claims. There has never been a case where a claim was adjudicated by a single person as vexatious or frivolous. For that reason, I will call on Report Stage for the removal of section 43 in its entirety.

25/02/2015CC00200Deputy Richard Bruton: The term “frivolous or vexatious” is a legal one and not pejora- tive in any sense. It is merely a question of saying that as far as the complainant is concerned, if he or she has no reasonable chance of succeeding, the law says it is frivolous to bring the case. Similarly, it is a hardship on defendants to have to take steps to defend something 3 o’clock which cannot succeed and the law calls that “vexatious”. The current regime op- erated by the Director of the Equality Tribunal provides a very good example of the effective filtering of complaints on receipt. Under the Employment Equality Acts and the Equal Status Acts, the director of the tribunal has the power to dismiss a complaint at any stage if he is of the opinion that it is made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. It is entirely logical that a similar power be vested in the Director General of the Workplace Relations Commission.

The exercise by the Director of the Equality Tribunal of the power under section 22 of the Equal Status Act was unsuccessfully challenged by the claimant appellant in Fitzgerald v. the Minister for Community, Equality and Gaeltacht Affairs, which came before the High Court by way of an appeal on a point of law from a judgment of the Circuit Court. The terms “frivolous” and “vexatious” are very tightly defined to refer to circumstances where there is no chance of success. It is not the sort of case the Senator envisages that will be struck out.

25/02/2015CC00300Senator Gerard P. Craughwell: I will go back and consult congress on this and may bring back an amendment on Report Stage. The Minister will understand this. I thank him for his answer.

Question put and agreed to.

SECTION 44.

25/02/2015CC00600Senator David Cullinane: I move amendment No. 95:

In page 42, lines 31 to 33, to delete all words from and including “but” in line 31 down to and including “1977” in line 33.

This amendment seeks to remove the proposed cap on re-engagement and reinstatement which was introduced by the Government. This is at the suggestion of ICTU which warns that the inclusion of the provision is a significant step backwards in equality rights and may be in breach of article 18 of the EU equality directive in respect of compensation and reparation. That is the logic of the amendment and I hope the Minister is in a position to accept it.

25/02/2015CC00700Deputy Richard Bruton: The Senator’s proposed amendment is inappropriate as it would have the effect of giving the District Court jurisdiction to award uncapped financial compensation in certain cases of unfair dismissal. This would be inconsistent with the status of the District Court as a court of local and limited jurisdiction under the Constitution. It would also be inconsistent with the scheme of the Unfair Dismissals Act 1977. Therefore, I will not accept

283 Seanad Éireann the amendment.

Amendment, by leave, withdrawn.

Section 44 agreed to.

SECTION 45.

25/02/2015CC01100An Cathaoirleach: Amendments Nos. 96 and 97 are related and may be discussed together.

Government amendment No. 96:

In page 43, line 18, to delete “under subsection (6)” and substitute “in accordance with rules under subsection (5) of section 20 of the Act of 1946”.

25/02/2015CC01300Deputy Richard Bruton: Amendments Nos. 96 and 97 are of a drafting or technical nature and are consequential on amendments made elsewhere in the Bill. Amendments Nos. 96 and 97 delete subsections (7) to (10), inclusive, of section 45 to avoid duplication with section 21 of the 1946 Act, as amended by section 75 of the Bill.

Amendment agreed to.

Government amendment No. 97:

In page 43, to delete lines 32 to 41, and in page 44, to delete lines 1 to 5.

Amendment agreed to.

Government amendment No. 98:

In page 44, to delete line 6 and substitute the following:

“(11) Proceedings under this section shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”.

Amendment agreed to.

Amendment No. 99 not moved.

25/02/2015CC01800Senator David Norris: I move amendment No. 100:

In page 44, between lines 6 and 7, to insert the following:

“(12) The Labour Court may remit a case to a different adjudication officer on such terms as the Labour Court shall determine to include directing an adjudicating officer to rehear the case applying the law to the facts as determined by the Labour Court.”.

The amendment addresses a situation where there is a misapplication of the law but not a misapplication, misunderstanding or misrepresentation of the facts in cases appearing before the Labour Court. In other words, it relates to cases in which the facts are established but the law is inappropriately administered. In such circumstances, time can be saved in the Labour Court by remitting a matter back to an adjudicating officer with an instruction simply to apply

284 25 February 2015 the law as determined by the Labour Court. This may mean that any subsequent appeal would only be on the issue of quantum, that is the amount of compensation involved. This could save costs to the State.

25/02/2015CC01900Deputy Richard Bruton: The Senator proposes that the Labour Court be empowered in the case of a matter which has come before it on appeal from a decision of an adjudication officer to refer that matter back to another adjudication officer to be determined again at first instance. This does not take into consideration the fact that, on appeal, the Labour Court hears the case de novo. The whole case is reheard. In the arrangement outlined in the Workplace Relations Bill 2014, both parties to a complaint have the right to have the matter heard fully on two occasions; at first instance and on appeal. This arrangement meets fully the requirements of fairness and justice. To provide an additional remedy to the Labour Court other than to uphold or deny an appeal would amount to providing the Labour Court with a concurrent jurisdiction akin to judicial review, a jurisdiction which is exclusive to the High Court and the Court of Appeal on appeal therefrom. Additionally, far from expediting proceedings, the amendment as proposed would serve, if adopted, to delay them as it would be necessary to have a minimum of three hearings in most cases.

25/02/2015CC02000Senator David Norris: It is not that we are looking for a rehearing of the entire case de novo. It is where the facts that were established were uncontested and agreed. While both parties consent and agree as to the facts, there is a misapplication of the law. The law is imperfectly administered and it is on a technical point of law that a matter would be referred back to have the law appropriately and correctly applied.

25/02/2015CC02100Deputy Richard Bruton: I am not sure I understand what an example of what the Senator seeks to achieve would look like. If a case is appealed by one side or another on the basis of a point of law, it is heard by the Labour Court afresh. The Labour Court will judge the whole case. The Labour Court is not a High Court which interprets law, rather it adjudicates on an actual case. The facts are presented to it and it makes an adjudication. It is not purporting to be the High Court making pronouncements on law. It adjudicates in the circumstances. We do not envisage that the Labour Court will interpret law in the way the Senator seems to.

25/02/2015CC02200Senator David Norris: Surely, it will interpret labour law as part of its function. I am instancing a case where the facts are established and not arguable and there is no necessity to rehearse them once again. They have been presented to the court and are agreed by both parties.

25/02/2015CC02300Senator Gerard P. Craughwell: Senator David Norris is adverting to something we have seen happen in cases before a Rights Commissioner where he or she finds in favour of the worker but the remedy offered does not comply fully with ability of the law to provide for compensation. In such a case, the worker and his or her representative must appeal the matter to the Labour Court which can take a long time. We are seeking to provide for the Labour Court to short-circuit the whole system by sending it back to the adjudicating officer with instructions that the law provides for a different remedy and to apply the law. We are trying to prevent cases going to a full sitting of the Labour Court which is overburdened with work. A quick decision can be sent back to a rights commissioner, the case can be recommenced and a misapplication of the law can be rectified.

25/02/2015DD00200Deputy Richard Bruton: We have no evidence that there are many cases of this nature where a misapplication of the law is clogging up the system. If an inappropriate remedy is made and the case is appealed, they rehear the evidence and decide what is the appropriate rem- 285 Seanad Éireann edy. I know of no evidence that the system is being clogged by the type of cases to which the Senator refers. I will consult people in the field but it has not been brought to my attention that rights commissioners are making decisions that do not properly apply the law. A person might dispute the judgment they reach and that is his or her entitlement. That is what is appealed to the Labour Court, not a false interpretation of the law, as I understand it. However, I will take the opportunity to get-----

25/02/2015DD00300Senator David Norris: It is not that we want the case heard from the beginning because it would be a rehearsal of everything that has been agreed if the facts of the case are agreed, but the issue relates to where an error made has been made and has been detected in the application of the law and having it speedily sent back to be corrected.

25/02/2015DD00400Senator Gerard P. Craughwell: The Rights Commissioner Service does an excellent job. I refer to rare cases but where a rare case occurs, we may save somebody having to wait a considerable time for a full sitting of the Labour Court. I would not like the Minister to think that the Rights Commissioner Service fails in its duties. My experience is that it does a wonderful job.

25/02/2015DD00500An Cathaoirleach: I welcome the teachers and pupils from Roscommon Community Col- lege. They are welcome to the Visitors Gallery.

25/02/2015DD00600Deputy Richard Bruton: We are in agreement and I will check that out to see if there is an issue.

Amendment, by leave, withdrawn.

Government amendment No. 101:

In page 44, to delete lines 10 and 11 and substitute the following:

“(13) (a) In proceedings before the Labour Court under this section, the appellant or respondent (including an appellant or respondent to whom paragraph (b) applies) may be accompanied and represented by—

(i) a trade union official within the meaning of section 11 of the Act of 1990,

(ii) an official of a body that, in the opinion of the Labour Court, represents the interests of employers,

(iii) a practising barrister or practising solicitor, or

(iv) any other person, if the Labour Court so permits.

(b) In proceedings before the Labour Court under this section, the appellant or respondent may, if he or she has not yet attained the age of 18 years, be accompanied and represented by his or her parent or guardian.”.

Amendment agreed to.

Section 45, as amended, agreed to.

Section 46 agreed to.

SECTION 47. 286 25 February 2015 Question proposed: “That section 47 stand part of the Bill”.

25/02/2015DD01300Deputy Richard Bruton: I am taking further advice on this section. It may be necessary to amend it on Report Stage.

Question put and agreed to.

Sections 48 and 49 agreed to.

SECTION 50.

25/02/2015DD01700Senator David Norris: I move amendment No. 102:

In page 46, line 2, after “out” to insert “having given the party a period of 30 days to pursue the complaint”.

This concerns a situation where nothing has moved over a period of a year and the case, as I understand it, is going to be struck out. At the point of the hearing, having adverted the complainants to the inaction in pursuance of their complaints, they should be allowed another period of 30 days to pursue the complaint. The reason is there can be justifiable reasons for a complaint being neglected in this way and not being pursued within the period of a calendar year. The person involved may have had a serious accident and could have been unconscious in hospital and so on or he or she could suffer from a disability. It would be reasonable that once the attention of complainants or that of their legal representatives has been drawn to the fact that the case is about to expire, they should be given a period of 30 days from the point of adverting to the fact that it is about to expire to decide whether to pursue it and to get themselves ready to pursue it. The amendment simply allows people in those unusual circumstances to have the benefit of an additional 30 days having had their attention drawn to the fact that the complaint has not been pursued.

25/02/2015DD01800Senator Gerard P. Craughwell: On rare occasions, somebody who is not qualified will represent a complainant and the case could drag on and suddenly the complainant could be confronted with the case about to fall. A 30-day notice period is a perfectly reasonable request and I ask the Minister to accept the amendment.

25/02/2015DD01900Deputy Richard Bruton: This would add an unnecessary complication to the system where in practice a notice will be sent in advance of the expiry date. The Senators’ amendment would introduce a further unnecessary administrative burden on the workplace relations commission and-or the Labour Court in dealing with complaints in respect of which the complainant has failed over an extended period to manifest any intention of prosecuting. The introduction of such an additional administrative layer and the consequent extension of the period for which an unprosecuted complaint would remain open is not desirable in the context of a new system, which is premised on the efficient processing of cases from the perspective of both complainants and respondents. As drafted, the section empowers, but does not compel, the director general of the Labour Court to strike out a complaint or appeal that has not been prosecuted for a year or longer. In each case, he or she must be satisfied that the complainant or appellant has not pursued the complaint or appeal for the specified period. How he or she will seek to establish this to be the case in practice is an administrative burden. A letter will be set out in normal course saying the deadline is such and such and requiring a new loop in the process would be an unnecessary addition bearing in mind the complainant has left a long time lapse.

287 Seanad Éireann

25/02/2015DD02000Senator David Norris: I am talking about unusual circumstances and Senator Gerard P. Craughwell has referred to a situation where somebody who is not qualified is pursuing the complaint or appeal. There could also be foolish solicitors or barristers. Cases have often been neglected to the disadvantage of complainants who believe they are being properly pursued and then discover to their horror one day that they are not. The Minister has instanced additional work but, for God’s sake, it is not much. It would take three minutes and, therefore, I do not accept for one second the additional work argument. The court is there to work and the ma- chinery is in place to assist people. The court is not there to impede them and to say it has too much work to do and it cannot bother with the complaints. If it is an issue of justice, it is an issue of justice.

When is the letter the Minister mentioned sent? How much notice is given? For example, is the letter sent six weeks prior to the expiry date or is it sent on 25 January stating the case will expire on 27 January? That is not much notice. The Minister has not been helpful in this regard and I ask him to think again. There is not much work involved. It is a question of justice and there is no indication in what he said that a letter will be sent warning of this to the complainant as well to his or her representative adverting to the fact that the complaint has been mishandled in this way.

25/02/2015DD02100Senator Gerard P. Craughwell: I represented workers for a number of years and it was not uncommon for them to think I slept with their cases 24-7 just because they did. However, there have been cases where a solicitor passed away and left a plethora of work behind. No- body was sure where anything was. If complainants are advised that they have 30 days to pursue their cases, at least they can go back to their representative, ask what is happening to their case and find that it was lost as a result of somebody dying or leaving a firm. It is a reasonable amendment and it will not result in a significant additional administrative work.

25/02/2015DD02200Deputy Richard Bruton: The present practice is a letter is sent by registered post giving 21 days notice to the complainant. It is an administrative practice, not a statutory practice. Be- fore the rights commissioners would exercise this power, they would have to satisfy themselves that the complainant has not pursued the complaint within the period of one year and that is how they do it. It is not dissimilar to what the Senators propose but it is an administrative practice and that is the way it should be. It is not a legal requirement.

25/02/2015DD02300Senator David Norris: That is helpful on the part of the Minister and I am grateful to him for that additional information that we have managed to tease out. The Minister says it is an administrative practice rather than a legislative requirement. We feel it is appropriate to make a requirement. Even if the Minister made the existing practice a requirement, to provide 21 days notice before it expires, this would go a long way towards meeting our requirements. I am relieved and grateful that he has informed the House of the practice, which is an administrative practice. There is no comeback if it is not followed.

I am tempted to comment further but I will not because of the decencies of the House. Will the Minister consider making it a requirement, which would not impose any further labour on the court? It would largely meet our requirements, particularly if the Minister can say it would be sent out one month before the expiry. We would be happy to accept that, although I am not sure if I speak for my colleague Senator Craughwell. That seems fair and would give the appellant notice and allow him or her to contact the legal representative, or fire the legal representative and get someone else, and relodge the complaint. I do not see any great difficulty with it because the Minister has said this is already administrative practice. There is no comeback if it 288 25 February 2015 is not followed but if it was incorporated into law it would involve establishing in law what is already the practice. I would be happy to accept that if the Minister can examine it on Report Stage.

25/02/2015EE00200Senator Gerard P. Craughwell: I concur with everything Senator David Norris said. If it is an administrative practice, turning it into a statutory practice is merely the stroke of a pen and will not change anything or add additional work. It makes perfect sense. Accidents happen and people get lost as a result.

25/02/2015EE00300Deputy Richard Bruton: I do not have a strong view but the section states it is up to the director general. The legal obligation is on the director general to satisfy himself that the complainant has not pursued the complaint. In law, we are putting a test of reasonableness on the director general before he strikes out the complaint. The way in which he chooses to exercise that test of reasonableness is the one we know about. I do not necessarily see why we should prescribe specific ways in which he could satisfy himself. This is what he can choose to do. In deference to the Senators, we will consider it but it is reasonable. The director general is trying to run an efficient office and should be given discretion. The obligation is on the director general, who must ultimately show that he behaved in a reasonable way in deciding to strike it out. The way in which he does this is perfectly reasonable to me, sending a registered letter. I do not think we need to prescribe it in law. This is a service in which we are trying to take out legalistic practices and to use administrative good sense. However, this practice is still subject to review. I will speak to the people who have familiarity with how the process is done but I feel the Oireachtas should not be excessively prescriptive when putting in place a director general to run an office in an efficient way. If something has been dormant for ages, we entrust the director general with an obligation to satisfy himself. I tend to take a more reasonable and less legalistic view than the Senators. What we have is reasonable and the way it is to be conducted is reasonable.

25/02/2015EE00400Senator David Norris: I accept that the Minister will speak to those concerned. I am sorry that he is not in a very positive frame of mind towards it. Why should it not be in law if it is administrative practice? It is not adding anything extra if it is already being done. It is not an additional fuss and simply copperfastens it in a case where a letter is overlooked.

25/02/2015EE00500Deputy Richard Bruton: I could come in with 100 good practices that the office does but it would be unreasonable of me to ask the Labour Court to enshrine it in a set of code that has the force of law. That means that, in six months’ time, the office cannot budge from the existing practice if technology changes. The Senator would seek to embed it in primary legislation and then we would be stuck with what materialises. If we were dealing with 1909 legislation, we would be obliged to send a horse and cart out with a notice.

25/02/2015EE00600Senator David Norris: The Minister is being fanciful. I will withdraw it in the hopes of a conversion of the Minister.

Amendment, by leave, withdrawn.

Section 50 agreed to.

Section 51 agreed to.

SECTION 52.

289 Seanad Éireann Government amendment No. 103:

In page 47, line 8, to delete “under the said Part 4” and substitute “under section 28 of that Act or the said Part 4”.

Amendment agreed to.

Section 52, as amended, agreed to.

NEW SECTION

Government amendment No. 104:

In page 47, between lines 16 and 17, to insert the following:

“Offence to fail or refuse to pay compensation

53. (1) It shall be an offence for a person to fail to comply with an order under section 44 or 46 directing an employer to pay compensation to an employee.

(2) It shall be a defence to proceedings for an offence under this section for the defendant to prove on the balance of probabilities that he or she was unable to comply with the order due to his or her financial circumstances.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.”.

25/02/2015EE01550Deputy Richard Bruton: This is a necessary deterrent to respondents in employment rights proceedings who fail to pay awards of compensation as directed. The amendment provides that it will be an offence for a party so directed to pay compensation to a complainant but who fails to do so, except in circumstances where that respondent can demonstrate to the court that his or her failure to pay the compensation was due to inability to pay.

Amendment agreed to.

SECTION 53.

Government amendment No. 105:

In page 47, lines 21 and 22, to delete “a rights commissioner” and substitute “a rights commissioner or the Employment Appeals Tribunal”.

25/02/2015EE01750Deputy Richard Bruton: This is a technical amendment to section 53(2) is being amended to ensure the amendments listed in schedule 6 shall not apply to any complaints or disputes referred under the legislation to be amended by section 53 before the commencement of Part 4 of the Act.

Amendment agreed to.

Section 53, as amended, agreed to.

Section 54 agreed to.

NEW SECTION

290 25 February 2015

25/02/2015EE02200Senator David Cullinane: I move amendment No. 106:

In page 47, after line 36, to insert the following:

Safeguarding Employees

“55. In addition to existing provisions in enactments that to safeguard workers from penalisation and victimisation, an employer or any person acting on behalf of an employer shall not penalise an employee for seeking to exercise or having exercised any entitlement under employment legislation including availing or cooperating with the Workplace Relations Commission.”.

This goes to the heart of one of the problems we have in existing labour law, the relationship between employers and employees. I refer to the obvious victimisation by some employers. The vast majority of employers are decent and treat workers fairly but there are employers who are not. We have seen examples of sit-ins and workers who have been victimised because they joined trade unions or because they took cases. We do not have strong anti-victimisation legislation that protects workers in the State. It is not robust enough and any trade union will concede this.

The amendment provides safeguards against victimisation for employees who stand up for their rights. It is also an important statement to include in the legislation. Workers are often afraid to raise their heads above the parapet, particularly during a prolonged period of high unemployment. We have often heard the comment that people are lucky to have a job. That can have connotations of people not feeling they can raise employment rights issues in the workplace. The purpose of the legislation is to deal with the structures and mechanisms in dealing with complaints and not to deal with the primary legislative rights and entitlements of workers. However, trade unions have warned that the lack of universal protection in legislation may result in employees facing discrimination, victimisation and blacklisting. The Government needs to remove the fear of retaliation.

Workers face a number of problems and there are weaknesses in existing employment law. We do not have strong robust compliance and enforcement. I raised some of these issues in earlier amendments. We do not have strong anti-victimisation legislation. A good example of what I am talking about are the Dunnes Stores workers, the vast majority of whom are on low hour contracts. Most of them are on 15-hour contracts and the contracts can be spread over five days. This is done purposely by the employer so the worker does not qualify for social welfare payments. A survey carried out by the Mandate trade union showed that 85% of those working in Dunnes Stores say the insecurity of their hours and the nature of their contracts was used by the employer to control them. That is one of the criticisms of precarious employment and underemployment, which is becoming a big issue.

This somewhat relates to the issue of victimisation and the fact that, in some instances, workers cannot stand up for themselves. It reverts to a point that I made in one of our previous discussions on the Bill, in that the power relationship between an employee and an employer is not always balanced. Often, it is very much weighted in favour of the employer. When an employer has power over how many hours someone works, it can influence whether the latter takes a case. If a worker takes a legitimate case, this amendment would mean that an employer could not victimise him or her subsequently. Unfortunately, it happens and needs to be stamped out.

The amendment seems reasonable. I am sure that the Minister wants people to use the 291 Seanad Éireann system. We are setting up the workplace relations commission to make the system simpler and more effective for employees and employers. The majority of employers provide decent work and decent pay, but there are those who do not. The majority of cases that the commission will hear will involve those employers who do not pay their workers proper wages, something that leads to conflict in the workplace and cases being taken by employees. Those employers will probably be the ones who victimise workers.

This issue relates to collective bargaining. The heads of a Bill will be published at some stage. I gave an example of a survey. The same company does not recognise the trade union. The Mandate trade union cannot enter the workplace to sit down and have a conversation with the employer. Some of the workers were victimised because they wore union badges. Imagine that. They were banned from wearing the badges and told that, if they wore them, they would be sacked or would not receive hours. That is victimisation.

We have a major problem and it needs to be solved. We are proposing an amendment. I have listened to the Minister’s comments in previous debates, for example, that this Bill is not the best place to deal with the matter. When is the best time and where is the place to deal with it? This problem has been with us for decades, but no Government has dealt with it sufficiently. As long as employers are allowed to victimise workers, some will continue doing so. We have a responsibility as legislators to ensure we have strong and robust anti-victimisation provisions in legislation to protect workers from unscrupulous employers who victimise them simply because they can.

Will the Minister take on board my points? I feel passionately about this issue. I will listen to his response. If he is not in a position to accept the amendment, I will withdraw it, resubmit it on Report Stage and push it to a vote. It is an amendment that should be tested via a vote. We will see where people stand on the issue.

25/02/2015FF00200Senator David Norris: This legislation provides mechanisms for employees to make justifiable complaints against employers, but that purpose is frustrated if the employer can victimise or penalise the complainant. We know from a perusal of unfair dismissal cases that people are frequently dismissed unfairly because of making complaints. It is a matter of record. The Min- ister could argue that there is law on unfair dismissals, but the amendment is meant to prevent the situation from reaching the point of a person being dismissed or penalised. That it prevents rather than closes the door after the horse has bolted is one of its most important aspects. This seems to be in line with present thinking on whistleblower legislation, etc. Whistleblowers should be protected by the State. It is appropriate that such provision be included in this legislation. I cannot think of where else it would be included. One has a perfect human right to make a complaint. One has the right to be protected against discrimination as a result of making it. I would not accept for one minute the suggestion that unfair dismissals legislation is the answer. If someone loses a job, is out on his or her ear and gets a few thousand euro in compensation, it is tragic and not good enough. Senator David Cullinane has instanced particular firms and situations in which people have been put under this pinch.

25/02/2015FF00300Senator Gerard P. Craughwell: I support Senator David Cullinane’s amendment. Hav- ing worked as a trade union representative at local and national levels for more than 15 years, two factors never cease to amaze me. First, middle line management who are not employers but represent them can take it as a personal attack when an employee takes a case. There are serious examples of victimisation in the public and private sectors. Second, there is a fear in the workforce. It is impossible to understand why so many workers will approach a trade 292 25 February 2015 union representative and ask him or her to represent them in particular cases without using their names. I have never figured out how someone is supposed to represent a worker’s case without using that person’s name.

Post-hearing victimisation is a serious issue. While there is legislation to deal with victimisation, I support Senator David Cullinane’s proposal to include such a measure in this legislation. The last time the Minister was in the Chamber, I complimented him on simplifying, or at least going a long way towards simplifying, industrial relations via this Bill. It gives us a clearer road to travel in terms of problems with industrial relations, equality, etc. The amendment would provide certain guarantees and allow workers some comfort when taking cases. Neither the Minister nor I can legislate for what people think. Unfortunately, there is little that we can do in that regard. However, this amendment might give some comfort.

25/02/2015FF00400Deputy Richard Bruton: I agree with Senator Gerard P. Craughwell that there is other legislation on victimisation. Such provisions are included in all legislation that we enforce in this context. However, I do not agree with him that it should be included in this Bill as well. The parent legislation sets out the penalties.

25/02/2015FF00500Senator David Cullinane: Clearly, it is not working.

25/02/2015FF00600Deputy Richard Bruton: A dismissal based on victimisation would, by definition, be an unfair dismissals case. Such action is not permitted by our legislation. Under the organisation of working time provisions, an employer shall not penalise or threaten to penalise an employee “for having in good faith”, etc. There is provision for not penalising under health and safety legislation. I could also refer to employment permits, protected disclosures, etc. Each of the relevant Acts makes explicit provision in this regard and we should not repeat in this legislation measures that are already provided for in the existing body of labour law.

I would be crazy to agree to Senator Gerard P. Cullinane’s amendment, as it does not con- tain a penalty clause. One must revert to the parent legislation to find the consequence of an employer victimising an employee. It differs depending on the law in question, but that is how it should be. This Bill is not an exercise in bringing all of the legislation together in a comprehensive section on victimisation. The amendment is superfluous and would not be effective in doing what the Senator hopes it would do.

25/02/2015FF00700Senator David Cullinane: Does the Minister believe existing legislation sufficiently protects workers from exploitation or victimisation? He would not find a single trade union representative anywhere in the world who would agree with him after reading the legislation. There is a weight of evidence from those who take cases, from the volume of cases and from the nature of cases to a number of high profile situations where workers were clearly victimised. I gave the example of where workers are not allowed to wear their trade union pin on their collar. We could give a number of examples without having to name names. If the Minister wants me to, I can send him as much information as he needs, but he does not need it. I assume he knows there are many cases where employers victimised their employees because they took a case.

The Minister is missing the point entirely or is being disingenuous by saying this is not a consolidation Bill. We are not saying it is one, nor is this amendment designed to do that. The Minister is bringing forward legislation which streamlines five existing employment rights bodies into one workplace relations commission to make it more effective for people to take a complaint. I accept that and fully understand what this legislation is designed to do. How-

293 Seanad Éireann ever, none of it is worth anything if a person who takes a case is then victimised and potentially sacked from his or her job for doing so.

The Minister cannot sit there with any sincerity and point to parent law or other legislation which he says protects workers. It does not work. We do not have enough protections or law in terms of compliance and enforcement. That is the big problem in the first instance, that is, compliance and enforcement of existing labour law. We certainly do not have anything like strong and robust anti-victimisation protections for workers.

The Minister mentioned the fact there is no penalty attached. We purposely did not insert any penalty because we wanted the Minister to accept that this issue needs to be dealt with. If he cannot do it in this legislation and with this amendment, could he answer the following question? Does he believe existing legislation and protections are in place? If so, are they robust enough to protect workers against the victimisation? I do not believe it nor will one find any trade union leader who does. If the Minister agrees with that, the logic is that we must deal with it somewhere else. Where is that somewhere else? What is the Minister going to do about it? It is his responsibility to ensure workers are not victimised because they take a case.

This is about setting up a new structure which allows people to take a case where there is conflict in the workplace but it can only be effective if there is proper compliance and enforcement and if a worker who takes a case is not victimised. This goes to the heart of this Bill in terms of what it is designed to do. Will the Minister reflect on this? If he is able to answer those questions and if he believes, as all those trade union activists, officials and people who work in the sector and I do, that the laws are not robust enough at this point in time, what will he do about it and when will he address this issue if he is not minded to accept this amendment?

25/02/2015GG00200Deputy Richard Bruton: This is an ineffective amendment, which I do not support for that reason. Our law is not perfect and I am sure our enforcement system is not perfect but we just passed an amendment without any comment from the Senator which introduces a provision that a party directed to pay compensation to a complainant but who fails to do so, except in circumstances where he or she is unable to pay, would become exposed to proceedings in the courts. We have made that party guilty of an offence for failing to do this; therefore, we are strengthening the enforceability. We are trying to make the process work more effectively where complaints arise.

There is in all of the parent law, which it would appear the Senator derided----

25/02/2015GG00300Senator David Cullinane: That is insufficient.

25/02/2015GG00400Deputy Richard Bruton: As I just stated, an employer shall not penalise or threaten to penalise an employee for having in good faith opposed by lawful means. That provision in employment legislation goes on to state what can be done under that for such activity. The Senator suggested we try to produce a raft of new provisions. That is not the purpose of the Bill. The Bill is trying to ensure the system makes it is easier to complain, is more enforceable, is quicker to adjudicate, is smoother to work and encourages a compliance culture. I am not pretending that labour law is by any means perfect. However, this is good legislation-----

25/02/2015GG00500Senator David Cullinane: If the Minister cannot do it here, where can he do it? Will he bring forward separate legislation?

25/02/2015GG00600Acting Chairman (Senator Paschal Mooney): The Minister to continue, without inter- 294 25 February 2015 ruption.

25/02/2015GG00700Deputy Richard Bruton: The Senator can shout me down if he wants.

25/02/2015GG00800Senator David Cullinane: I am asking a question. I am not shouting at all.

25/02/2015GG00900Acting Chairman (Senator Paschal Mooney): The Senator will have an opportunity to respond.

25/02/2015GG01000Deputy Richard Bruton: We are providing legislation that will codify our law in a way that it will be much more effective and much more enforceable. I am not saying this is the last word on employment law. We will shortly introduce legislation to deal with the Low Pay Commission and, as the Senator knows, legislation to deal with collective bargaining. We have already introduced legislation to deal with temporary agency workers. We will introduce legislation to restore the registered employment agreements. Last year, we introduced legislation to deal with joint labour committees. We are continually evolving labour legislation.

To propose an ineffective amendment and say I should change a raft of law, when that is not the purpose of the Bill, is unfair. We will continue to improve labour law and that will be reflected in current practices, just as in the past. We have introduced several Bills which have improved employees’ rights and we plan further ones.

25/02/2015GG01100Acting Chairman (Senator Paschal Mooney): Is the Senator pressing the amendment?

25/02/2015GG01200Senator David Cullinane: No; I will resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Sections 55 to 66, inclusive, agreed to.

NEW SECTION

25/02/2015GG01600Acting Chairman (Senator Paschal Mooney): Amendments Nos. 107 and 108 are related and may be discussed together.

Government amendment No. 107:

In page 50, to delete lines 33 and 34 and in page 51, to delete lines 1 to 3 and substitute the following:

“67. (1) (a) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Commission in so far as they relate to any claim for redress, dispute or complaint determined by the Employment Ap- peals Tribunal under an employment enactment before that day.

(b) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Labour Court in so far as they relate to appeals determined by the Employment Appeals Tribunal under an employment enactment before that day.

(2) (a) References in any enactment or instrument under an enactment to the Em- ployment Appeals Tribunal in so far as they relate to a function transferred by paragraph (a) of subsection (1) shall be construed as references to the Commission.

295 Seanad Éireann (b) References in any enactment or instrument under an enactment to the Em- ployment Appeals Tribunal in so far as they relate to a function transferred by paragraph (b) of subsection (1) shall be construed as references to the Labour Court.”.

25/02/2015GG01750Deputy Richard Bruton: Amendments Nos. 107 and 108 clarify the range of additional functions which will transfer to the workplace relations commission and the Labour Court on the dissolution of the Employment Appeals Tribunal. The Employment Appeals Tribunal will continue to sit for a period beyond the commencement of this legislation in order to hear all complaints and appeals referred to it before the commencement of Part 4. When the tribunal has cleared those complaints and appeals, the Minister will make an order formally dissolving it.

Section 67 provides that all first instance and appellate functions which remain vested in the tribunal as of the date of its dissolution will transfer to the workplace relations commission and the Labour Court, respectively.

Amendment agreed to.

SECTION 67.

Government amendment No. 108:

In page 51, to delete lines 5 and 6.

Amendment agreed to.

Section 67, as amended, agreed to.

SECTION 68.

Government amendment No. 109:

In page 51, to delete lines 19 to 21 and substitute the following:

“(4) All records relating to proceedings under an employment enactment, that, immediately before that day, were records of the Employment Appeals Tribunal shall be records of the Labour Court and, accordingly, shall be transferred to the Labour Court.”.

25/02/2015GG02350Deputy Richard Bruton: Subsection (4) currently provides only for the transfer to the Labour Court of records of the Employment Appeals Tribunal relating to proceedings before it under the Unfair Dismissals Act 1997. This subsection is being amended to provide that the tribunal’s records in relation to proceedings under all employment legislation within its remit should be transferred to the Labour Court on the dissolution of the EAT. I am currently in discussions with the Office of the Parliamentary Counsel in relation to certain provisions in Part 6 which relate to transitional issues arising as a result of the EAT and, therefore, it may be necessary to bring forward some further amendments to these provisions on Report Stage to clarify any outstanding drafting issues.

Amendment agreed to.

Section 68, as amended, agreed to.

Sections 69 and 70 agreed to. 296 25 February 2015 SECTION 71.

Question proposed: “That section 71 stand part of the Bill.”

25/02/2015GG02900Senator David Norris: I am in receipt of communication from a gentleman who is a solicitor and whose wife is a barrister. They operate in this area. A case with which his wife is dealing concerns an employee who has been dismissed from his job on grounds of ill-health. He brought a claim for unfair dismissal to the Employment Appeals Tribunal. Arising out of issues concerning his ill-health, the employee also brought a personal injury case in the High Court. Due to the very short limitation period of two years, he had to commence his proceedings prior to his EAT claim being heard. On the application of the employer, the EAT postponed the employee’s claim until after the disposal of the High Court case. As matters stand, the employee is having considerable difficulty in advancing his High Court case due to resistance by the employer in providing documents on discovery.

Our earlier discussion of this issue had an unsatisfactory outcome, although I understand the Minister will give further consideration to it. Given the delays as outlined, the Bill will likely become law before the employee’s High Court case is disposed of. This prompted a review of the Bill. Part 4 of the Bill deals with complaints and disputes, and provides that an adjudication officer will hear contested cases which are heard by the EAT. Cases before an adjudication officer are to be heard in private and an appeal can be brought to the Labour Court. However, the only route of appeal from the Labour Court is to the High Court on a point of law. Part 6 of the Bill deals with the dissolution of the EAT. Section 67 of the Bill deals with transfer of EAT functions to the Labour Court. Section 71 is the nub of the matter. This section provides that anything commenced and not completed before the dissolution of the EAT may be, in so far as it relates to functions transferred to the Labour Court under section 67, carried out or completed by the Labour Court. This is one of these “may” and “shall” provisions. The operation of the word “may” can leave persons, such as the individual referred to in this correspondence, in limbo. It is not clear what is meant by the word “may” or what position would be applicable where the EAT has heard a case but had not made a determination. That is not specified. Once again, the person could be left in limbo. The result of the provisions in sections 67 and 71 is that a claimant or any party with a case that has not been completed when the EAT is dissolved will be deprived of a right of appeal other than on a point of law. The present right of appeal is to the Circuit Court and is a rehearing. Clearly this is unfair and possibly unconstitutional because it leaves such persons in a worse position than complainants whose cases come under the new system. I raise this issue on the advice of a solicitor whose wife is the barrister involved in the aforementioned case.

25/02/2015HH00200Senator Feargal Quinn: I received a similar communication to that outlined by Senator David Norris, who has explained the issue very well. I support his call for an explanation.

25/02/2015HH00300Deputy Richard Bruton: Section 82(2) provides that the amendments to the Unfair Dis- missals Act 1977 “effected by this section shall not apply in relation to a claim for redress under that Act brought before the commencement of this section.” Perhaps I might have a note prepared for the Senators to provide certainty on the matter.

25/02/2015HH00400Senator David Norris: I would be grateful if the Minister could do that. As I understand his comment, section 82(2) addresses the concerns I have raised by ensuring the Bill will not cause cases to be left in limbo.

297 Seanad Éireann

25/02/2015HH00500Deputy Richard Bruton: That is my understanding of the matter. Section 71 also provides that any document operative immediately before the dissolution day will be treated as if it was issued by the Labour Court. That means any undertaking given by the EAT would continue to be an undertaking in the Labour Court.

25/02/2015HH00600Senator David Norris: I would be grateful for a note on the matter.

Question put and agreed to.

SECTION 72.

Question proposed: “That section 72 stand part of the Bill.”

25/02/2015HH01000Senator Mary M. White: Fianna Fáil totally opposes the imposition of fees in any shape or form. The advisory board to the National Employment Rights Authority has taken the view that while the introduction of a fee may avoid vexatious complaints, it may also penalise genuine complainants and stop some people from using the system. SIPTU has sought a commitment that fees will be abolished. Professor Michael Doherty from the department of law in NUI Maynooth contends that the introduction of fees in England was detrimental to individuals’ access to justice. The imposition of fees for lodging claims has had a damaging impact on the accessibility of employment tribunals in England.

25/02/2015HH01100Senator Gerard P. Craughwell: I call for the complete removal of section 72 because it provides a legal basis for the introduction of fees for lodging complaints. This is unacceptable. The experience of trade union colleagues in the United Kingdom is that fees have priced justice out of the hands of workers. The introduction of fees has played a role in removing workers’ rights and research has shown this measure alone has resulted in a fall of 79% in overall claims before employment tribunals, with women and low paid workers most severely affected. It has been a bonanza for the worst employers, who can cheat workers out of wages. There was a decrease of 70% in the number of workers pursuing claims for non-payment of the national minimum wage in the United Kingdom and claims for unpaid wages and holiday pay have fallen by more than 85%. A report prepared by TUC found that many people are dissuaded from making claims because the cost of going to the tribunal is often more expensive than the sum of their outstanding wages.

The introduction of fees at any level and for any reason is opposed by the trade union movement under the auspices of ICTU, which fears that fees will be extended at some stage in the future. We previously discussed the issue of victimisation. Anything that deters a member of the public from bringing a case to an adjudication officer or the Labour Court should be elimi- nated. The Bill goes a long way towards opening up the process but fees should be opposed because they go in the wrong direction.

25/02/2015HH01200Senator David Norris: The introduction of a fee for lodging a complaint will act as a bar- rier to many low paid workers, of whom a proportion are migrant workers, and will serve as a disincentive to those who are already concerned about the risk of taking a case. A migrant worker who was not paid his or her wages or a person with a disability who was denied access to employment may have no other income or may be relying on social welfare payments. The imposition of a fee may make the pursuit of justice an unaffordable and impossible goal. For that reason, section 72 should be deleted. My colleague, Senator Gerard P. Craughwell, quoted extensively from the note circulated to us by Ms Esther Lynch. The figures are extraordinary.

298 25 February 2015 There has been a 79% fall in overall claims, a 70% reduction in the number of workers pursuing non-payment of the national minimum wage, and an 85% drop in claims for unpaid wages and holiday pay. These are horrifying figures and should inform our consideration of legislation whose purpose is to facilitate people to make complaints. The Minister has said he is not considering the introduction of fees. Why then is provision made, in section 72, for a mechanism to permit such charging? The provision is not needed if there is no intention to introduce fees.

I also received a briefing from the Irish Nurses and Midwives Organisation, INMO, which makes a series of valid points for the removal of section 72 altogether. If fees were introduced, it would be very difficult for employees to pursue their domestic legal rights and, by extension, to have rights derived from EU legislation enforced. We are not talking 4 o’clock just talking domestic Irish law, in other words, but also concomitant legislation from the European Union. The Government position on this section is that it will not be actioned in the first instance, but there remains an allowance for its imposition at some later stage. Again, I ask what is the purpose of retaining this provision if there is no intention to activate it? It is ICTU’s position that imposing a fee to pursue legal rights should never be necessary and, therefore, this section should be removed.

There have been suggestions a fee might be required to compel employers to attend hearings. In reality, employment rights cases may be decided on in the absence of the employer and enforced in the District Court. It is not necessary, therefore, to compel employers to attend. If they do not turn up, it is hard luck and they probably will find the case decided against them. The introduction of a fee penalty will not influence the decision to attend one way or the other. It is now being suggested that the provision could be amended to allow for the imposition of a fee only where employers seek to appeal a decision having not attended the first-instance hearing. Again, such a mechanism would allow the introduction of fees to a system where they do not apply and would not act as a deterrent to the practice referred to given that employers have indemnification in place to cover such costs. One can impose a fee on them, but somebody else will pay it. It will not be paid by the person exhibiting bad faith.

If any fee, for any reason, is introduced at this stage, it will be used to open the door for expansion of the relevant provision at a later stage. To put this in context, the INMO advised on 600 employment rights cases last year. Some were settled, but many were referred to the Rights Commissioner Service. These were ordinary workers, including nurses in the private and public sectors, seeking such rights as access to pay slips, payment of wages on time, correct rest periods, redundancy benefits, protection of employment while on maternity leave and so on. In other words, they were standard, run of the mill cases. The salary for a nurse is very modest, at €27,000 for a first-year staff post, and does not allow much scope for paying fees to establish one’s existing rights. Why should people be penalised by having to pay for the establishment of these rights? Employers, on the other hand, will not be concerned by a fee as most have insurance schemes to cover the additional costs.

The introduction of a fee to pursue legal rights will impose a very real impediment to the securing of the basic right to a fair and equal system for workers. That would be a very nega- tive change to what is currently a fair and equal mechanism for allowing employees to have their case heard on an equal footing. Section 72 provides the legal basis for introducing a fee for making a complaint and is unacceptable. According to ICTU, the experience of its trade union colleagues in the United Kingdom is that “fees price justice out of the hands of workers”. That is a very stark phrase and we in this House should take heed of it in the context of our duty 299 Seanad Éireann to ensure justice for workers. I am certain that is likewise the Minister’s intention. If he does not intend to introduce fees, why is the provision included? I have already noted the figures showing a 79% fall in overall claims taken to employment tribunals, with women and low-paid workers the worst affected. ICTU describes this as a “bonanza” for the worst employers, who cheat workers out of their wages. This is the verdict of a trade union which is dealing with these issues all the time.

The situation is quite clear. One of the most striking points in ICTU’s document is the warning that employers will not be affected by this provision at all because they already have insurance to cover them. If they are charged fees, those fees will be paid by a third party. The provision is ridiculous and farcical. There is no reason whatever to retain section 72.

25/02/2015JJ00200Senator Kathryn Reilly: I support Senators David Norris, Gerard P. Craughwell and Mary White in their opposition to this section. While it may not be the Minister’s intention to introduce fees, this provision will enable his successors to do so. Research published this year by the Citizens Advice Bureau in Britain shows that seven out of ten potentially successful cases by employees against their employers are not going ahead following the introduction of a fee system. Between October 2013 and March 2014, there was a 73% drop in the number of cases relative to the same period in the previous year. The research referred to the case of a man who worked 40 hours per week for more than two months as a kitchen porter and was entitled to holiday pay of just under £300. He abandoned his claim on discovering the fee for accessing the tribunal would be £390. We will be opposing this section.

25/02/2015JJ00300Senator Terry Leyden: I join colleagues in proposing the deletion of this section. The previous speakers have made a very persuasive case by way of their well-researched contributions and cogent arguments. As a former Minister of State in the Minister’s Department, my experience was that one could always expect tremendous contributions in this House from very experienced people. Moreover, those contributions were likely to be more detailed and comprehensive than those in the Dáil, perhaps because Deputies are tied up with a great deal of constituency work and other commitments and do not have the time to put in the amount of research Senators clearly have put into this debate. I am terribly impressed by colleagues’ contributions today.

My suggestion is the Minister might reconsider this issue before Report Stage. I would be surprised if Labour Party Members are in favour of it, particularly given that ICTU and other trade unions are opposed to it. Sometimes Bills pass through Cabinet without other Ministers having an opportunity to give any input. I suspect that not many of the Minister’s Cabinet colleagues have read this very complex Bill. A great deal of work has gone into it, presumably over several years. When one sees a combined opposition from Members on all sides of the House to a particular provision, it gives reason for pause. Indeed, the Minister himself does not seem very convinced of the merits of the types of charges being allowed for in this section. The provision is being included on the basis that it may be necessary to assist with the cost of administration and so on. However, colleagues have clearly made the case that it would be detrimental to persons wishing to bring forward a complaint. The Minister does not need to go back to the Cabinet on this issue. He can accept the arguments and delete the section. If the proposal is put to a vote, we will see how strong our commitment is to this issue.

25/02/2015JJ00400Deputy Richard Bruton: I thank the Senators for their contributions to the debate on this provision. The section provides for a reserve power and my intention is to use it in only one circumstance, namely, where an employer fails to attend a hearing at first instance and 300 25 February 2015 subsequently appeals the decision to the Labour Court. I do not want to encourage that type of practice when we are providing a simple and clean way of having cases heard quickly. If an employer decides he or she is not going to co-operate with that simple mechanism and then proceeds to appeal the case to the court, I will impose a fee. This is a reserve power, as I said, and the circumstance I have indicated is the only instance in which I will use it. I assure Sena- tors I do not intend to introduce any fees for workers taking cases of the types they outlined. To put Senator Terry Leyden’s fears to rest, it is not a revenue raising measure and I have no intention of using it to raise revenue. However, introducing fees in the one instance which I propose would encourage a better use of the legislation and is a justifiable use of a fee in a situation in which somebody has put somebody through an initial hearing, fails to turn up and then decides to appeal it and force it into the Labour Court, delaying the worker’s opportunity to have his or her case dealt with quickly and fairly in the first instance. This is the only instance in which I intend to use the power and it is right that I should be able to do so.

25/02/2015KK00200Senator Gerard P. Craughwell: While I accept the Minister’s word, he and I will come and go and the Bill will remain. I am not so sure I would trust every future Minister not to expand the powers. While I understand the reason the Minister is keeping the power in reserve, the trade union movement is totally opposed to it and I stand four-square with it against any form of fee for any reason. The Minister chose to highlight the deviant employer rather than the deviant employee. These issues can be solved without the threat of fees.

25/02/2015KK00300Senator David Norris: The Minister is being disingenuous because he has said here in the House, which has no legal effect, that he will introduce it in only one case. If this is the situation, why did he not frame the legislation in such a way that he can introduce it only in one case? He has given himself extremely wide powers. The Bill states:

The Minister may, in respect of—

(a) such services provided by the Commission as may be prescribed, and

(b) such services provided by the Labour Court as may be prescribed,

charge the recipient of any such service a fee for the purpose of defraying the cost of the provision of that service by the Commission or the Labour Court, as the case may be.

It is the whole shebang; it is the whole shooting match. It is not one little case but the introduction of fees, full stop. It could not be broader or more general. If it is the Minister’s intention to introduce it in only one case, he should introduce a provision that meets only that case. This would apply mostly to employers and I have already stated it is not the slightest penalty against them, given that they are insured against such a contingency. It will have no effect on them. I call on the Minister to withdraw the section. It is not applicable and the Minister’s defence of it is extraordinarily weak because although he said he would introduce it in one specific case, he has given himself carte blanche to introduce fees. If he is serious about it, why not specify the situation in which he may introduce fees? Given that he has not done so, his argument does not stand. He can say what he likes in the Seanad, but it will not be persuasive in a court of law because the legislation will be persuasive, and the legislation is wide open. This is consistently opposed by all the trade unions. If the Minister is seeking good workplace relations, he should not alienate the whole trade union movement. They are very clear on this. I appeal to the Minister to rethink this section and withdraw it or frame it in such a way that it directs his venom at the one little instance. Talk about using a hammer to crack a nut. This is

301 Seanad Éireann using a nuclear bomb to squash a midget.

25/02/2015KK00600Deputy Richard Bruton: I am introducing this general provision with the intention of using it only to ensure the system works smoothly in the way it should.

25/02/2015KK00700Senator David Norris: It will not.

25/02/2015KK00800Deputy Richard Bruton: Despite some interests wanting it, I have no intention of using this to put barriers in the way of workers. I can bring to the Oireachtas committee the regulations on the provision for the fee for those who fail to turn up. I am giving myself a general power because we do not know what other practices might arise that would interfere with people’s proper use of the legislation.

25/02/2015KK00900Senator David Norris: Aha.

25/02/2015KK01000Deputy Richard Bruton: It is a general power. The Senators must take my word that we are not using it to raise funds or stand in the way of any worker pursing his or her justifiable rights. I do not see any reason for putting fees in place to stand in people’s way. There were different views on the two sides and, after considering it, I came down on the side that conforms to the views of the trade unions. However, I am reserving the right to introduce a fee in this case and in the event that a similar instance arises in which I think it would be in the interests of the system to prevent bad practices in the way it is being used. This is the only reason I am taking the general power and it will not be for any of the purposes feared by Senators.

25/02/2015KK01100Acting Chairman (Senator Paschal Mooney): Although many Senators wish to speak, we seem to be exhausting the debate on this issue. I do not want to go around in circles.

25/02/2015KK01200Senator David Norris: We are not going around in circles but are making a very important point.

25/02/2015KK01300Acting Chairman (Senator Paschal Mooney): I understand and have noted everybody who wants to speak.

25/02/2015KK01400Senator Gerard P. Craughwell: We are not going around in circles. This provision places the Bill at direct odds with the trade union movement in general.

25/02/2015KK01500Acting Chairman (Senator Paschal Mooney): The Senator has already made that point, as have other speakers.

25/02/2015KK01600Senator David Norris: I made the point which Senator Gerard P. Craughwell is supporting.

25/02/2015KK01700Senator Gerard P. Craughwell: The Minister said that while the general provision is there, he would use it only in a specific case. He then went on to qualify this and say that for some other subjective reason which may arise, and which is not known today, he, or some future Minister, may decide to extend the provision. We should not keep the section; however, if we must, I concur with Senator David Norris that we should restrict the legislation to the one instance to which the Minister refers and ensure we do not find the Bill is immediately in conflict with the entire trade union movement, and thus with every worker in the country. I ask the Minister to reconsider it.

25/02/2015KK01800Senator Terry Leyden: The Minister might be worn down yet. I have never heard such a

302 25 February 2015 strong view being expressed by Senators in such a detailed way. The Minister is very reasonable and has knowledge. He said we must take his word for it and accept how he feels about it. However, as Senator Gerard P. Craughwell said, we do not know who will be here in ten years time. A future Minister might say it is a wonderful opportunity to charge for everything and make money to pay for all the services. The Minister will work the Bill. Somebody discussing this in 20 years time might say the Minister, Deputy Richard Bruton, said all these nice things when he introduced the Bill and the reply will be that Deputy Bruton has no say in it.

I have a suggestion to avoid a vote on the issue, and save the Labour Party any embarrass- ment. I am surprised the Labour Party is not contributing anything on the Bill. As a SIPTU member I give the union and ICTU great credence. The union members are reasonable people and are just making a point. The Minister’s point is also reasonable. I suggest that on Report Stage he put what he has said here in legislative form. We will accept his bona fides on what he is trying to achieve in that regard. It is reasonable and would ensure nobody will ever abuse the views the Minister has expressed today.

25/02/2015KK01900Senator David Norris: It is all coming out now. Only in the latter stages of this discussion is the veil being rent from the Minister’s position. First, he said powerful interests had been lobbying for a wider application of fees. These interests will continue to operate on the Depart- ment. The Minister said very firmly on a number of occasions there is only one case in which he would apply this legislation, that he put in this reserve function so that he could use it in one instance. He returned to this again and again and insisted on it. Now, most intriguingly, he has come out and said there may be other instances which we have not foreseen. This gives away the game. The Minister is putting in the function not just for one instance, but in order that he can cover contingencies that may or may not arise in the future if he feels like introducing a fee. Moreover, I already have illustrated that this will have no impact whatever on employers because they are indemnified already. The Minister first stated there will be only one instance but then he stated there may be other ones as well. Members would like to know what other ones. One cannot have legislation that is hypothetical in the extreme like this. As for the suggestion that something might happen, if something catastrophic occurs, the Minister could then introduce additional emergency legislation. I now am more concerned than ever about this. As I stated, the Minister is in direct collision with the trade union movement. I do not give a damn what his advisers say. While I should not attack civil servants, they seem to be a fairly conservative lot. They are backtracking on-----

25/02/2015LL00400Acting Chairman (Senator Paschal Mooney): May I remind the Senator, as a Senator of long standing, that he really should not refer to the civil servants in the context of the political argument he is making?

25/02/2015LL00500Senator David Norris: Then take them as being unreferred to.

25/02/2015LL00600Acting Chairman (Senator Paschal Mooney): I thank the Senator.

25/02/2015LL00700Senator David Norris: However, I have made a clear and inarguable case to the Minister. He either has the intention of expanding this or at least is making provision that he can expand this. It is a very bad practice that is opposed by the trade unions. Moreover, it is totally ineffective because the employers already are indemnified against it and I can discern no reason whatever for it. This is one of the areas about which I feel most strongly. The Minister has heard of the impact of the imposition of fees and, of course, that is why the employers will be lobbying for it. They of course wish to see falls of 79%, 70% and 85% in types of legitimate 303 Seanad Éireann cases. They wish to see the weak ground down and I do not believe that Members should provide in law for that to happen.

25/02/2015LL00800Senator Mary M. White: I speak as a former member of the national women’s committee of what formerly was known as the Federated Workers Union of Ireland. While I am an employer, I am a supporter of unions and I will call for a division on this section. Members have done too much talking about it and should cut to the chase. While the Minister knows I have the highest respect for him on a personal level, I will call for a vote unless he changes his mind and agrees to remove the section completely.

25/02/2015LL00900Senator David Norris: If I may intervene in advance of a vote, could I ask the Minister, in order to avoid a division, to give an undertaking to examine the possibility of putting into legislation the single specific case he instanced in the first place and to forget about all the hypothetical ones? They can be dealt with later. Were the Minister to narrow the provision to the specific case he has in mind, the House would be prepared to live with that but otherwise, there will be a vote. That would be a real pity because it has been a relatively agreeable debate. While the Minister and Members have locked horns, had different opinions and so on, the Minister has undertaken to reconsider certain matters. I would be grateful were he to consider doing the same in this instance. Otherwise, I am afraid it will be a vote and that is redundant because the Government will win the vote. As there is no question about that, it is rather an empty exercise.

25/02/2015LL01000Senator Terry Leyden: The Labour Party might rebel.

25/02/2015LL01100Senator David Norris: I very much doubt it.

25/02/2015LL01200Acting Chairman (Senator Paschal Mooney): Has Senator Gerard P. Craughwell something new to offer to the debate?

25/02/2015LL01300Senator Gerard P. Craughwell: I have. I plead with the Minister at least to give Members the hope he may revert on Report Stage and to not allow this matter to be pushed to a vote at this point, because I really seek to have this section removed.

25/02/2015LL01400Deputy Richard Bruton: It will be necessary to bring any regulation under this provision before the Houses of the Oireachtas in the usual way. Consequently, there is provision for the Houses to be involved if any such regulation came forward. As I stated, only one will be brought forward and I undertake to consult with the Oireachtas committee in order that people can see what I am bringing forward. However, this is a general power and it is reasonable to include it. I have given the assurance that there is absolutely no intention of using this-----

25/02/2015LL01500Senator David Norris: It is not legally enforceable.

25/02/2015LL01600Deputy Richard Bruton: But it would be necessary to bring forward any power in regulations to the House.

25/02/2015LL01700Senator David Norris: To avoid a vote, why does the Minister not bring them forward in the legislation?

25/02/2015LL01800Deputy Richard Bruton: Because I intend to use this power to bring forward a regulation in the case I have outlined. I will do this because I believe that will improve the operation of the legislation I will bring that regulation before the committee and before I lay it before the Houses and people can decide whether they approve it. However, I believe this is a reasonable approach. The instance I have outlined to the Senators is an unreasonable practice that we 304 25 February 2015 should stamp out and I will use this power for that. I have no intention of using it for any of the reasons given by the Senators to pretend the game is out or all the things of which Senator Da- vid Norris has accused me. No game is out. The game is that I am producing a single instance. I will bring in regulation and Members will have an opportunity to look at it. I will bring it before the committee in order that people can see it and that is the purpose of this section.

25/02/2015LL01900Acting Chairman (Senator Paschal Mooney): Is section 72-----

25/02/2015LL02000Senator David Norris: I apologise but I have not finished. While the Minister can talk about bringing a regulation to the House, that still leaves in force the general power in the legislation to introduce further regulations. This is not acceptable. The Minister has reverted to his original point and is kind of shifting from point to point. He now states again that it is for the single instance. If that is the case, it should be included in the legislation and not by regulation and I appeal to the Minister in this regard. Why not bring it forward within the legislation? What is this great thing about regulation? Why not include it within the legislation as an amendment on Report Stage? The Minister should not put Members through the farce of voting. He certainly would be embarrassing his Labour Party colleagues by doing that. If the Minister must have this one exception, he should then put it into the legislation. He should not use regulation, which leads the legislation wide open for further elaboration and is quite offensive to democracy.

Question put.

The Committee divided by electronic means.

25/02/2015NN00100Senator Diarmuid Wilson: Under Standing Order 62(3)(b), I request that the division be taken again other than by electronic means.

Question put:

The Committee divided: Tá, 25; Níl, 18. Tá Níl Bacik, Ivana. Barrett, Sean D. Brennan, Terry. Byrne, Thomas. Burke, Colm. Craughwell, Gerard P. Coghlan, Eamonn. Daly, Mark. Coghlan, Paul. Healy Eames, Fidelma. Comiskey, Michael. Heffernan, James. Conway, Martin. Leyden, Terry. Cummins, Maurice. MacSharry, Marc. D’Arcy, Jim. Mooney, Paschal. D’Arcy, Michael. Norris, David. Gilroy, John. O’Brien, Mary Ann. Hayden, Aideen. O’Sullivan, Ned. Higgins, Lorraine. Power, Averil. Keane, Cáit. Quinn, Feargal. Kelly, John. Reilly, Kathryn. Landy, Denis. White, Mary M. 305 Seanad Éireann Moloney, Marie. Wilson, Diarmuid. Moran, Mary. Zappone, Katherine. Mulcahy, Tony. Mullins, Michael. Naughton, Hildegarde. Noone, Catherine. O’Keeffe, Susan. O’Neill, Pat. van Turnhout, Jillian.

Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.

Question declared carried.

Sections 73 and 74 agreed to.

NEW SECTION

Government amendment No. 110:

In page 53, between lines 31 and 32, to insert the following:

“Amendment of section 21 of Act of 1946

75. Section 21 of the Act of 1946 is amended, in subsection (1), by-

(a) the substitution of “The Court may for the purposes of any proceedings before it under this Act, any investigation under the Industrial Relations (Amendment) Act 2001, the Unfair Dismissals Act 1977 or Part 4 of the Workplace Relations Act 2015 do all or any of the following things” for “The Court may for the purposes of any proceedings before it under this Act or any investigation under the Industrial Rela- tions (Amendment) Act 2001 do all or any of the following things”, and

(b) the substitution of the following paragraph for paragraph (b):

“(b) take evidence on oath and, for that purpose, cause to be administered oaths to persons attending as witnesses before it,”,”.

25/02/2015OO00400Deputy Richard Bruton: Amendment No. 110 is of a drafting and technical nature. Sec- tion 75 amends section 21 of the Industrial Relations Act 1946 to extend the range of proceedings in respect of which the Labour Court may exercise certain functions and powers invested in it by the 1946 Act, as amended.

Amendment agreed to.

306 25 February 2015 Section 75 deleted.

SECTION 76.

25/02/2015OO00800Senator David Norris: I move amendment No. 111:

In page 55, after line 42, to insert the following:

“(e) the Chairman of the Labour Court for the purposes of having any particular case dealt with may-

(i) appoint a person or persons to be a temporary member of the Labour Court,

(ii) appoint a person or persons to be a temporary Deputy Chairman of the Labour Court,

(iii) the Minister shall from time to time nominate a body of persons who may be appointed as a temporary member of the Labour Court or a temporary Deputy member of the Labour Court on such terms and conditions as he or she may determine,

(iv) any person who may be nominated as a temporary member of the Labour Court or temporary Deputy Chairman of the Labour Court shall be appointed to a list of persons whom shall be reviewed every five years. Any person nominated by the Minister shall be subject to a nomination from the Public Appointment Service and the production by the 31st March in each year of a certificate from the Revenue Commissioners confirming compliance with the Taxes Consolidation Act 1997 (as amended).”.

This amendment is about the power of nomination of the chairman of the Labour Court. It allows him to appoint persons as temporary members of the Labour Court. There are cases that arise in which there is no power for the chairman of the Labour Court to nominate other persons where there could be a conflict. This amendment deals with conflict of interest. This is a frequent phenomenon in court cases where judges recuse themselves from cases because they are known to one of the parties before the court. The amendment seeks the same provision because there is a limited number of members of the Labour Court. This is to allow the chairman to appoint somebody as a temporary member in order to avoid a situation where there are conflicts of interest. There is such a provision in the equality legislation as to the director of equality; therefore, there is a precedent in law already.

As the number in the Labour Court would be relatively small and to avoid problems which have arisen in the past where the Labour Court members would have known the parties or one of the parties, for the purpose of ensuring that there would be a fair hearing, there are issues to ensure that a completely independent division could be appointed. This amendment seeks directly to do this.

An example which could arise would be that a member of the workplace commission brings a claim under a particular Act. Unless it is equality legislation, members of the Labour Court may well know that person having met with him daily and would have to hear the case even where there could be a perceived prejudice, even though there might be no actual prejudice. The Labour Court applies matters fairly but even in the High Court, judges excuse themselves. There are inevitably sufficient judges to avoid any perceived prejudice but with four divisions only there is a potential for the entire membership of the Labour Court to know an employee or 307 Seanad Éireann employer personally.

I would think the fact that in one instance where the equality legislation is invoked there is such a provision would mean that we would want transparency on a level playing field for everybody and that granting this power to the chairman of the Labour Court would be an appropriate move in the right direction.

25/02/2015OO00900Deputy Richard Bruton: The Bill makes adequate provision for an increase in the staffing of the Labour Court. It also makes provision for the making of temporary appointments to the Labour Court to cover certain absences of a full-time officer or member. There is no case to support the creation of a panel of temporary members. The Labour Court is bound to act ju- dicially at all times and to avoid bias or the perception of bias. When the new appointments to the Labour Court envisaged in the Bill have been made, the court will consist of 13 officers or members. This allows for a significantly increased number of possible combinations of personnel to deal with any particular case and thus considerably reduces the possibility of a division of the court having to recuse itself to avoid the perception of bias.

Amendment, by leave, withdrawn.

Section 76 agreed to.

Sections 77 to 79, inclusive, agreed to.

SECTION 80.

25/02/2015OO01400Acting Chairman (Senator Paul Coghlan): As Government amendment No. 112 is consequential on Government amendment No. 113, they may be discussed together.

Government amendment No. 112:

In page 58, line 33, to delete “person.”,” and substitute “person.”.

25/02/2015OO01600Deputy Richard Bruton: Amendments Nos. 112 and 113 are intended to allow the Minis- ter to make a temporary appointments to the office of deputy chairman of the Labour Court to fill a temporary vacancy that may arise in certain circumstances in that office. Such a vacancy may occur, for example, where an incumbent deputy chairman is unable to perform his or her duties for a period or dies or is removed from office.

25/02/2015OO01700Acting Chairman (Senator Paul Coghlan): Does Senator David Norris wish to comment?

25/02/2015OO01800Senator David Norris: No, except to say I completely agree with the amendment.

Amendment agreed to.

Government amendment No. 113:

In page 58, between the lines 33 and 34, to insert the following:

“(1C) Where a person-

(a) appointed under subsection (1) to be a deputy chairman,

(b) who continues to be a deputy chairman by virtue of subsection (1A),or 308 25 February 2015 (c) reappointed in accordance with subsection (1B) to be a deputy chairman is, for whatever reason, unable to perform his functions as deputy chairman and the Minister is of the opinion that his inability to so perform his functions would unduly disrupt the performance by the Court or a division of the Court of its functions, a temporary vacancy among the deputy chairman shall be deemed to exist and the Minister may, after consultation with the chairman, appoint a person to fill that temporary vacancy subject to such terms and conditions as the Minister shall determine.

(1D) If a deputy chairman dies, resigns, ceases to be qualified for office and ceases to hold office or is removed from office, or a deputy chairman’s term of office expires and he is not reappointed under subsection (1B), the Minister may appoint a person to be a deputy chairman to fill the vacancy so occasioned pending the appointment of a deputy chairman to fill that vacancy in accordance with subsection (1), and the person so appointed shall hold office subject to such terms and conditions as the Minister, with the consent of the Minister for Public Expenditure and Reform, determines.”,”.

Amendment agreed to.

Section 80, as amended, agreed to.

SECTION 81.

25/02/2015OO02300Acting Chairman (Senator Paul Coghlan): Government amendment No. 119 is consequential on Government amendment No. 120. Government amendments Nos. 114 to 120, inclusive, are related and may be discussed together.

Government amendment No. 114:

In page 59, between lines 20 and 21, to insert the following:

“(b) by the substitution, in paragraph (d) of subsection (2A) of section 2, of “the adjudication officer or the Labour Court” for “the rights commissioner, the Tribunal or the Circuit Court”,

(c) by the substitution, in subsection (5) of section 2A of “the adjudication officer or the Labour Court” for “the rights commissioner, the Tribunal or the Circuit Court”,

(d) by the substitution, in subsection (2A) of section 5, of “the adjudication officer or the Labour Court” for “the rights commissioner, the Tribunal or the Circuit Court”,

(e) by the substitution, in subsection (7) of section 6, of “the adjudication officer or the Labour Court” for “the rights commissioner, the Tribunal or the Circuit Court”,”.

25/02/2015OO02450Deputy Richard Bruton: Government amendments Nos. 114 to 120, inclusive, are largely technical and of a drafting nature. These amendments are necessary to ensure the complaints and redress procedures which will apply to complaints brought under the Unfair Dismissals Act 1977 are as analogous as possible with the complaints and redress scheme provided for in Part 4 of the Bill. In particular, section 11 of the Unfair Dismissals Act 1977 is to be amended to ensure there is no inconsistency between the provisions which apply to the service of documents under that Act and those that will apply under the Workplace Relations Act.

25/02/2015OO02500Senator David Norris: On Government amendment No. 120, in regard to a notice or other

309 Seanad Éireann document that is required to be served on a person is it sufficient, for example, just to send it by electronic means? There are many people who do not have computers, including me.

25/02/2015OO02600Deputy Richard Bruton: There are alternative means.

25/02/2015OO02700Senator David Norris: I thank the Minister.

Amendment agreed to.

Government amendment No. 115:

In page 59, to delete line 27 and substitute the following:

“(II) subsections (3), (4), (5), (9) and (10),”.

Amendment agreed to.

Government amendment No. 116:

In page 59, to delete lines 29 to 33 and substitute the following:

“ “(1) (a) A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and, where such a claim is so referred the Director General shall, subject to section 39 of the Act of 2015, refer the claim to an adjudication officer for adjudication by the adjudication officer.

(b) Section 39 of the Act of 2015 shall apply to a claim for redress referred to the Director General under paragraph (a) as it applies to a complaint presented or dispute referred to the Director General under section 42 of that Act, subject to the modifica- tion that references, in the said section 39 to a complaint or dispute shall be construed as references to a claim so referred.”,”.

Amendment agreed to.

Government amendment No. 117:

In page 60, to delete lines 21 to 23.

Amendment agreed to.

Government amendment No. 118:

In page 61, to delete lines 1 and 2 and substitute the following:

“(xii) by the substitution, in subsection (12), of “the adjudication officer or the La- bour Court, as may be appropriate” for “the rights commissioner, the Tribunal or the Circuit Court, as the case may be”,”.

Amendment agreed to.

Government amendment No. 119:

In page 62, line 11, to delete “and”.

310 25 February 2015 Amendment agreed to.

Government amendment No. 120:

In page 62, between lines 18 and 19, to insert the following:

“(g) the substitution of the following section for section 11:

“11. (1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address; or

(d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner.

(2) For the purpose of this section, a company within the meaning of the Compa- nies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.”, and

(h) the substitution, in subsection (2) of section 15, of-

(i) “decision has been made by an adjudication officer” for “recommendation has been made by a rights commissioner”, and

(ii) the deletion of “or the hearing of a claim by the Tribunal has commenced”.”.

Amendment agreed to.

Section 81, as amended, agreed to.

SECTION 82.

25/02/2015OO04300Acting Chairman (Senator Paul Coghlan): Amendments Nos. 121 and 122 are related and may be discussed together.

25/02/2015OO04400Senator Kathryn Reilly: I move amendment No. 121:

In page 62, between lines 25 and 25, to insert the following:

“(2) Section 1(3) of the Act of 1984 is amended by the insertion of the following paragraph: 311 Seanad Éireann “(e) the employer is deemed to be insolvent in circumstances where he has ceased trading and payments to employees have been determined by the Minister to have de facto been stopped on a permanent basis for a period of six weeks or more;”,

(3) Section 4 of the Act of 1984 is amended by the insertion of the following paragraph:

“(g) where following notification in writing by the employee, employees or a representative body to the Minister the employer is deemed to be insolvent in circumstances where he has ceased trading and payments to employees have been determined by the Minister to have de facto been stopped on a permanent basis for a period of six weeks or more;”,

(4) Section 6 of the Act of 1984 is amended by the insertion of the following subsections:

“(11) Without prejudice to subsections (5), (6) and (7) and section (8), the Min- ister shall make a decision on an application without delay but in any event no later than 60 days after the application is made.

(12)(a) If the time limit provided in subsection (11) expires before the Minister makes a decision on an application the Minister shall, not later than 30 days after the expiry of the time limit, publish a statement containing the reasons for the delay in making a decision.”.”.

The purpose of this amendment is to amend the interpretation section of the Protection of Employees (Employers’ Insolvency) Act 1984 to enable workers access the insolvency fund when their former employer has ceased trading and is, in effect, insolvent but has 5 o’clock not been formally placed in liquidation or receivership, declared legally bankrupt, died or deemed insolvent under legislation of another member state. Amendment No. 122 seeks to amend the definition of insolvency for the purpose of the application of the Act of 1984. Workers should still be in a position to apply under the insolvency fund where their former employer has ceased trading under the same circumstances as I have mentioned.

25/02/2015OO04500Deputy Richard Bruton: These amendments seek to address the complex issue of so- called informal insolvency. This issue is not within the scope of the scheme of the Bill. Fur- thermore, the issue raises complex questions at the intersection of employment and company law which would require detailed and separate consideration. The amendments are not appropriate for these reasons; therefore, I do not propose to accept them.

Amendment, by leave, withdrawn.

Amendment No. 122 not moved.

Section 82 agreed to.

25/02/2015PP00100Acting Chairman (Senator Paul Coghlan): On section 83-----

25/02/2015PP00200Senator David Norris: We are under the instructions of the House.

25/02/2015PP00300Acting Chairman (Senator Paul Coghlan): I am just at the end of the page.

25/02/2015PP00400Senator David Norris: The Chair is under the instructions of the House to report progress. 312 25 February 2015

25/02/2015PP00500Acting Chairman (Senator Paul Coghlan): Therefore, Members do not want to move to section 83.

25/02/2015PP00600Senator David Norris: Report progress.

25/02/2015PP00700Acting Chairman (Senator Paul Coghlan): I ask the Leader to report progress.

25/02/2015PP00900Senator Paschal Mooney: I presume section 83 is agreed. Is that correct?

25/02/2015PP01000Acting Chairman (Senator Paul Coghlan): No, Senator David Norris stalled me. I was pulled, I did my best.

25/02/2015PP01100Senator David Norris: We have to live by the rules of the House.

25/02/2015PP01200Acting Chairman (Senator Paul Coghlan): We will resume on section 83.

25/02/2015PP01300Senator David Norris: When are we resuming?

25/02/2015PP01400Acting Chairman (Senator Paul Coghlan): Whenever that is agreed but that is up to the Leader and the Minister.

25/02/2015PP01500Senator Maurice Cummins: Next Thursday.

Progress reported; Committee to sit again.

25/02/2015PP01600Health Services: Motion

25/02/2015PP01700Acting Chairman (Senator Paul Coghlan): I welcome the Minister for Health, Deputy Leo Varadkar.

25/02/2015PP01800Senator Thomas Byrne: I move:

That Seanad Éireann:

noting:

- the deplorable overcrowding being regularly experienced in hospital emergency departments;

- the record number of patients waiting on trolleys;

- the further delays in scheduled hospital treatments that will result from such overcrowding; and

- the failure of the Government and the Health Service Executive, HSE, to adequately prepare for a situation they fully expected to happen;

further noting:

- the sustained and consistent deterioration in the waiting lists for both outpatient appointments and scheduled treatments since the start of 2014;

- the failure to meet time related targets for waiting times over the past year; and

313 Seanad Éireann - the decision of the Minister for Health to extend the target for waiting times to inpatient and day case treatment from eight to 18 months;

agreeing that:

- the overcrowding crisis is causing an intolerable risk and danger to patients;

- patient dignity is being compromised;

- there are insufficient beds and frontline medical staff to treat the increased number of patients needing admission; and

- the crisis is being exacerbated by the number of patients clinically discharged who cannot leave hospital because the Government and the HSE are not providing sufficient nursing home beds or home care support;

agreeing further that:

- the health services are underfunded;

- the 2015 HSE national service plan is not sufficient to fully address the increasing demands and demographic pressures being placed on the hospital system; and

- key targets in the plan are regarded as unrealistic by its authors;

calls on the Government and the HSE to:

- immediately provide beds and increased front-line staff in order that the overcrowding can be eased;

- restore the number of beds funded under the nursing home support scheme to at least the level supported in 2013; and

- fund the health services appropriately and sufficiently in 2015.

I welcome the Minister. It is about time we got answers and solutions. In opposition we are often accused of not having a health policy. We are working on that but it is clear the Govern- ment does not have a health policy. That is the truth of it. I acknowledge that the Minister is very good at telling the truth but that is what we should all do. It is part of the job we all try to do. One needs to carry out those actions, it is not enough to sit back and comment. His comment today, that people will die, was appalling because his job, as Minister, is to keep people as well as possible within the available resources. It is not enough to accept death, suffering and outrageous waiting lists.

The overcrowding in the hospital emergency departments in recent months is deplorable. In one case we heard that a 103 year old woman was left on a trolley for 48 hours. In January there were record daily numbers of patients waiting on trolleys. The number of patients on trolleys is very high today. That week in January when there was a record number of patients waiting on trolleys saw a five-day weekly total of more than 2,500. There was no daily figure of 601 last week but the cumulative five-day total was even higher than the worst week in January, therefore the position is getting worse according to the statistics. On Tuesday there were 514 patients on trolleys. The overcrowding is leading to further delays which is the nub of the issue because it affects a vast number of people. In scheduled hospital treatments the waiting lists 314 25 February 2015 soared in 2014, partially because of the reversal of a trick the Minister’s predecessor pulled in terms of putting people into one-off appointments to private consultants without any follow up but they have continued to increase in 2015.

It is right to record the changes to waiting list targets, the changes that have taken place and the announcements made in recent years but it is very difficult to get this information as one has to start looking around for what was said and when it was said. When the Government came into office, the National Treatment Purchase Fund was effectively abolished. However, it stayed as an organisation and monitored what was going on. It stated in July 2011 that the maximum inpatient waiting time would be eight months and for outpatients a year. In Septem- ber 2012, the then Minister for Health, Deputy James Reilly, by way of newspaper interview said the waiting list for inpatients would be a year but would be reduced to nine months. That is how these things are usually announced, they are slipped into an interview as if they were already in place.

In 2013, a trick was played by sending a huge number of people off the waiting list to private consultants, not to get anything done but for a one-off appointment. They were taken off the list for a temporary period and the Minister was congratulated on what he had done to reduce the post-12 months waiting list to about 4,000. What actually happened was that he sent a number of people on the waiting list to private consultant appointments. In some cases these consultants were not of the specialty required and once the patients saw the consultants once they were put back on the waiting list and lo and behold the waiting list shot up again.

When the Minister became Minister for Health last summer he said there would be a maximum waiting time of 18 months; therefore, it has changed again. At the end of 2014 he promised the waiting list would be reduced to 15 months by the end of this year, as set out in the Government’s amendment. It also states there will be an 18 month target by the middle of the year. The question is what is the target today? What is acceptable?

By my calculations, if the target is a maximum waiting time of 18 months, although I suspect it is higher, plus 12 months for an outpatient appointment, a person could wait 30 months for a hip replacement, for example, and that would be deemed acceptable and as meeting the targets set by the Department of Health. It is crazy. As far as I can see, waiting times and the targets have been changed eight times since the Government came to power. In other words, we have had eight variances in what are regarded as acceptable waiting times. There is also al- legedly a maximum waiting time of 20 weeks for children. Will the Minister confirm whether it still applies? It seems doubtful in the context of a case brought to my attention recently, in which a three year old is waiting since last April for an ear, nose and throat outpatient appointment. That is absolutely extraordinary.

The crisis in the health system is being exacerbated by several things that are going wrong or have gone wrong in the management of the hospitals service. There are not enough beds and not enough front-line medical staff. Announcements on the appointment of new staff will not solve the problem today. There are record numbers of patients who have been clinically discharged but cannot leave hospital. Only in a very small number of cases can we attach blame to the patient in such instances; there have always been a few who do not want to move. Gener- ally, however, the problem is arising because the Government and the Health Service Executive are not providing sufficient nursing home beds and home care supports.

One of the tricks pulled by the Minister’s predecessor was installing a waiting period for the 315 Seanad Éireann fair deal scheme. Prior to this, the Government would fund any waiting period retrospectively, either by reimbursing the nursing home or giving a refund to the patient where he or she had covered the cost of the waiting period through personal funds. The change is effectively a really stealthy cutback. The Government is now stating that for the 12, 14 or more weeks people are waiting for their application to be accepted, cover will not be provided. In the vast majority of cases people are in nursing homes because they have to be. The very definition of a requirement for such care is that the person cannot live at home. It is a last resort for families and, when it gets to that stage, elderly people cannot hang around waiting to be admitted. In many cases, the obligation to fund the waiting period is bankrupting families. It is utterly unfair.

It is essential that beds be opened immediately and staffing levels increased without further delay. It is not enough to tell our emigrants to come home and that they will find a great welcome. The problems I have detailed require immediate resolution, but the Minister is not doing what needs to be done. As I outlined, he has changed the maximum waiting time target a number of times since he came to office last summer. That is not acceptable. He has had plenty of warnings about what is going on. The former chairman of the HSE’s emergency department task force and national director of acute hospitals, Dr. Tony O’Connell, warned last September that delayed discharges were putting lives at risk. Dr. O’Connell has since left the HSE. Instead of examining the issues he raised, the Minister took another opportunity to complain about pay levels in the health service without doing anything about them. Incidentally, the headline comment was that Dr. O’Connell had left for pay reasons.

The cancellation of elective surgery was a massive mistake. The involvement of the Irish Nurses and Midwives Organisation, INMO, in making representations supporting that move, as I understand it, was retrograde. I understand SIPTU did not support it. Trade unions should represent their members, which the INMO generally does very well. In this instance, however, its stance gave the Government cover for cancelling large numbers of operations for people who were in pain, particularly on the orthopaedic side. That is adding massively to the waiting lists. Will the Minister consider bringing back the National Treatment Purchase Fund in some form to have these operations carried out and help people who are in pain? It was not a perfect system, but it got the work done.

What exactly is the special delivery unit doing or does it even still exist? If it does, nobody seems to be clear on its role. The programme for Government promised that this initiative would be the be all and end all, the greatest thing since the sliced pan, as the phrase goes. How- ever, we hear very little about it now. It was mired in controversy over expenses, consultancy payments and so on and it has not really shown anything in the way of progress. Will the Min- ister set out exactly what it has achieved?

It is time to get stuck into the nitty-gritty of the work that has to be done to resolve the health crisis and keep people well and alive. The Minister put it very starkly when he said people were dying, but it is not good enough to talk about it if he is not going to take the action needed. He is required not to be a commentator on health matters but an action man. He must show that he can get things done and is capable of doing what so many deemed him to be capable of doing. Instead of simply telling us what is wrong, he must right those wrongs.

25/02/2015QQ00200Senator Marc MacSharry: I second the motion. On the first occasion on which the Minis- ter came to the House in his new role I noted how much I admired his straight-talking approach and wished him well. I expressed confidence that if anybody could reform the health service, it would be him. He responded by saying I might not be saying this within a few months and, 316 25 February 2015 sure enough, here we are. My colleague, Deputy Billy Kelleher, issued a statement today in which he asked whether somebody would tell the Minister that he was the Minister for Health.

25/02/2015QQ00300Senator John Gilroy: It makes a change for that Deputy to be saying something about health.

25/02/2015QQ00400Senator Marc MacSharry: The Senator can check the Official Report to see what he has been saying.

25/02/2015QQ00500Senator John Gilroy: Where is his policy? Where is the Senator’s policy?

25/02/2015QQ00600Senator Marc MacSharry: The reality is that the entire health service is underfunded. I am not saying it is perfectly well managed. Clearly, there are management challenges and changes that have to be made, but inadequate funding is the underlying problem. It has moved beyond the point of crisis and I do not envy the Minister his position.

I accept that it is difficult to come up with adequate solutions. The Minister is noted for his straight talking, but we also need action and, above all, funds to address the difficulties. The overcrowding we saw in the run-in to Christmas and again more recently had been predicted. At the beginning of the preparations for the service plan, the director general of the Health Service Executive, Mr. Tony O’Brien, outlined the risks to patient safety and the difficulty of delivering necessary services safely without an additional injection of funding in the region of €1.3 billion. We all accept that there is only so much pie to go around, but in response to the request for €1.3 billion, the Government allocated €100 million or thereabouts.

We all are aware of the situation in hospitals around the country, with patients being left on trolleys and elderly people left unattended. That is unacceptable. I have told people not to bring an elderly family member to hospital, unless they are able to wait with him or her. In fairness to nurses, orderlies and the various other hospital staff, they are pressed to the pin of their collar in trying to carry out their duties and cannot give the time required to patients. The reality is, as the figures outlined by my colleague clearly show, we have a health service that is at breaking point.

Dr. Tony O’Connell left the HSE less than one month ago after just eight months in one of that body’s most senior roles. At one stage he wrote a three-page analysis in which he indicated that there were 703 delayed discharge patients taking up 30 wards of capacity. Why can these patients not go home? Are there no nursing home or convalescent beds available for them? Are we thinking outside the box at all to deal with this problem? Has the Minister sat down with the Tánaiste and Minister for Social Protection, Deputy Joan Burton, for instance, and considered whether we should look at abolishing means testing for carer’s allowance? Should we explore the possibilities in that regard? Do elderly people have aunts, brothers, sisters or children who would be in a position to look after them in their own homes if they had sufficient support, including medical cards and other back-up supports? That might well be a more cost effective way of doing things, given that it costs €900,000 per week or something like it to keep people in nursing home beds. Has it been examined? Has a costing been done because, if not, that is the kind of outside the box thinking we need. I do not know whether it will work but it is certainly worth considering the abolition of the means test which, with other supports, could provide a solution to the hold up on the fair deal waiting list of some 2,000 and free up some of the 30 wards of capacity. At one time 703 people were waiting to be placed. In other mate- rial I have read that is credited to Mr. O’Connell he states there are several patients in hospital

317 Seanad Éireann waiting up to three years for a place. They are effectively living in hospitals. That is not the kind of management we need.

I do sympathise with the problem of resources faced by the Minister. He is sent with a statement laundered through some public relations industry, which is not I am sure how he likes it, in terms of calling it as it is, to say everything is rosy, the special delivery unit is doing its job, we are making progress, it is a difficult task. It is way beyond a difficult task. Dr. Fergal Hickey of the Irish Association for Emergency Medicine has warned about the risks but we do not seem to be any nearer a solution. The Minister needs to think outside the box and say this is what we will do rather than say this is challenging, this is unacceptable. We are all sick of that rhetoric. I am sick of saying it. That is one suggestion for the Minister. He can come back to me the next day and tell me why it is not workable to abolish the means test for the carer’s allowance on a trial period to free up some space in nursing homes and acute beds in hospitals and see if it is practical. Let it not be said that I am not trying to make some suggestions.

While it is slightly off the subject of today’s motion, I predicted when this Minister took office that it would not take long before he issued the parrot like responses his predecessor, and indeed Mary Harney when she was Minister, wheeled out regularly, to the effect that under the Health Act 2004 the chief executive officer of the HSE is now responsible for that area and the Minister has written to him and asked him to respond directly to the Deputy or Senator. That kind of behaviour is not acceptable and I am sure the Minister does not like doing it.

Following the debacle of recent years I want to bring up three medical card cases I have asked the Minister about: one concerns X and Y, twins, aged three, born prematurely, whose lives have revolved around medical appointments. X has had cerebral palsy since birth and has numerous other health issues as a result; Y has recently been diagnosed with asthma which will require increased doctor and specialist visits in the future. Both boys qualify for domiciliary care allowance from the Department of Social Protection and medical reports are provided to qualify for it. It is clear the Departments do not talk to each other because that case is under appeal through the Minister’s office. The second case involves an 18 month old who has Down’s syndrome with medical complications and is seeing a consultant in Crumlin hospital who cannot believe she does not have the medical card. Once again the response was that it is under appeal through the Minister’s office. These cases are all in south County Sligo. Another child, two years old with serious medical problems, awaiting a call to Crumlin hospital qualifies only for a general practitioner card.

The final case concerns a man who has cancer in two places and heart conditions. I have written to the Minister’s office about him. I will not name him here but he is from Cartron in Sligo. I am sure somebody in the Minister’s office can look him up. We cannot continue on the autopilot that I will quite openly say ran this country into the ground in so many ways. The Minister should not let autopilot rule his tenure in the Department of Health. We know how challenging it is. He does not need to tell us. We hear it every day. He should tell us the tan- gible things he is going to do to make it different this time.

25/02/2015RR00200Senator Colm Burke: I move amendment No. 2:

To delete all words after “That Seanad Éireann” and insert:

“acknowledges:

- the difficulties which overcrowding in emergency departments causes for patients, 318 25 February 2015 their families and the staff who are doing their utmost to provide safe, quality care in very challenging circumstances;

- that the Government regards the current emergency department overcrowding situation as a major problem and that optimum patient care and patient safety at all times remain a Government priority;

- the wide-ranging set of actions which have been put in place by the HSE to achieve improvements;

- the specific measures which have been put in place to address hospital waiting lists more efficiently and effectively, for example through initiatives on colonoscopies, special funding for scoliosis and ophthalmology, the appointment of additional consultants and the extension of ultrasound access to additional primary care sites; and

- the targeted, integrated approach being adopted by the HSE in relation to the needs of elderly patients who no longer require acute care; notes in particular that:

- all hospitals have escalation plans to manage not only patient flow but also patient safety in a responsive, controlled and planned way that supports and ensures the delivery of optimum patient care;

- actions taken to date to address emergency department overcrowding include the opening of additional overflow areas, providing additional diagnostics and strengthening discharge planning with a range of measures including:

- 900 transitional care beds funded in private nursing homes (500 in January, and a further 400 in February), to assist in the discharge of patients from acute hospitals;

- 173 short stay public beds being opened across the country for a three month period;

- agreement on additional nursing posts: this year the number of nurses directly employed in the public health service will increase by at least 500 (excluding the increase in mental health nurse numbers);

- up to 300 overflow beds opened in acute hospitals; and

- additional community intervention teams introduced in Naas and Drogheda, with 11 such teams now in operation;

- the Minister for Health convened the emergency department task force last year to find long-term solutions to overcrowding by providing additional focus and momentum in dealing with the challenges presented by the current trolley waits;

- the HSE is finalising an action plan under the auspices of the task force to be implemented immediately to specifically address emergency department related issues across hospital, social care and broader community services with a view to a significant reduction in trolley waits over the course of 2015;

- actions being taken by the HSE to address waiting lists include observation of the 319 Seanad Éireann national waiting list protocol, prioritising day of surgery admission where clinically appropriate; and provision of new patient care pathways such as medical assessment, mi- nor and local injury units and urgent care centres and provision of care in non-hospital settings to support the efficient use of hospital resources;

- waiting list targets have not been changed and the HSE is finalising an action plan for waiting lists with a focus on very long waiters, such that by mid-year, nobody will wait longer than 18 months for inpatient and day case treatment or an outpatient appointment, with a further reduction thereafter to no greater than 15 months by year end;

- the HSE has committed in its national service plan 2015 to the publication of waiting lists on line at consultant and specialty level and aims to reduce waiting lists by way of process redesign, consolidating further the work of the special delivery unit to date;

- the Government has made provision for a welcome increase in the total financial resources available to the HSE in 2015, the first in seven years;

- the HSE is now in a position, where it knows there is an urgent service requirement, to recruit the necessary staff including additional nurses, doctors and therapists;

- the Government provided additional funding of €3 million last December and €25 million in 2015 to address delayed discharges: this funding is being targeted at hospital and community services which can enable initiatives to address specific needs of delayed discharge patients positively and thereby aims to improve timelines for admission from emergency departments and reduce waiting lists;

- the review of the nursing homes support scheme which is currently under way and due to be completed shortly will consider the future funding and sustainability of the scheme, as well as how community and residential services are balanced - following the review’s completion the Government will consider how best to meet the health, and related community and social care needs of older people;

- the failure of Fianna Fáil to make any proposal in its alternative budget for 2015 to address waiting lists and emergency department pressures, its leader’s broken promises when Minister for Health to eliminate waiting lists and the direct link between the constraints in recent years on the health budget and the economic crisis caused by Fianna Fáil’s reckless behaviour in government;

and supports:

- the Minister for Health in his continued determination to bring about improvements in urgent and emergency care services and hospital waiting lists.”

I welcome the Minister. It is good to have a debate on this matter but it is also good to talk about the real issues. It is important to recognise and give credit to the Minister, the Depart- ment and the HSE for their response in the past two months. A total of 900 transitional care beds have been opened, 500 in January, 400 in February, 173 short-stay public beds have been opened and 300 overflow beds have opened in acute hospitals but there remains a great deal of work to be done.

When dealing with this issue, however, it is important to consider what is happening in accident and emergency departments. For example, in 2014 there were 1,104,000 attendances 320 25 February 2015 in accident and emergency departments, that is over 3,000 each day. If there is even a 20% increase that means an additional 600 people attending each day. That is the challenge we face. There is a feeling the whole hospital service is collapsing but we need to realise that last year there were over 3,189,000 outpatient attendances. There were 451,000 emergency admissions and approximately 100,000 elective procedures. That is the work hospitals deal with outside the accident and emergency departments.

There are major challenges in the service which I will continue to highlight. Owing to the shortage of funds in recent years and the cutbacks, there was a reduction in staffing levels. One of the major challenges we face is consultant vacancies. There are many locums and agency consultants employed but according to my calculation, 325 positions require to be filled. When they are filled hospitals can start dealing with the waiting lists. We need decision makers. We need to give priority to this area.

I refer regularly to the Hanly report of 2003. There was a lack of action in the following ten years while we expected junior doctors to provide a high level of care in hospitals. The Hanly report set out a clear guideline. We should set out new targets over the next five years to implement that report. The target was to have 3,600 consultants by 2012 but now we have 2,500. We would then reduce the number of junior doctors. We have lost a huge opportunity to use nursing staff in the hospital service. Every nurse is competent but they have acquired additional skills which we are not using sufficiently. We need to consider their responsibilities to make sure they can make the contribution they want to make.

I note that Senator Marc MacSharry has left the Chamber but the 2005 report on accident and emergency departments described access and long-term planning. According to that report, the lack of consistent development of services outside hospitals is a primary cause of the vol- umes being experienced by the acute sector. International experience indicates improvements in primary care services as part of the health reforms reduce accident and emergency attendances, hospital admissions, occupied bed days and delayed discharges. Those commenting on the report said they experienced in many areas in the review an over-focus and emphasis on the acute sector as providers of all services to local populations from highly specialised interventions to very routine outpatient services such as phlebotomy, monitoring and dressing clinics, all of which should have been more appropriately happening within a community setting both as a first line service and a follow up.

There were several recommendations in that report but we have not made much progress on diverting work from accident and emergency departments to primary care, particularly when there was adequate funding between 2005 and 2008-9. I have spoken to several GPs in recent days who talked about their lack of access to diagnostic services. They know what is wrong with the patient but they cannot get anything done unless the patient is admitted to hospital, although they are quite capable of delivering a service. We must prioritise this issue in order that GPs can access diagnostic services in the hospitals without having to refer patients to consultants or clinics. When GPs refer patients they are put on a waiting list and can be waiting to be seen for four to six weeks. The only way around that is to refer them to the accident and emergency department. This is something we could tackle immediately and it would help to deal with the overflow in our accident and emergency departments.

It would be worth the Minister’s while to read that report from 2005 and to tick the boxes beside the recommendations that were followed through. He will find that there are a lot of boxes that cannot be ticked because we have not acted on them. 321 Seanad Éireann

25/02/2015SS00200Senator Trevor Ó Clochartaigh: Cuirim fáilte roimh an Aire go dtí an Teach. Despite no longer being front page news, the trolley crisis is still rumbling in emergency departments across the country, with 514 people waiting on trolleys yesterday. Waiting lists are growing longer, with 385,781 people now waiting for outpatient care. The number of people having to wait for more than a year for an outpatient appointment also increased to 61,400 at the end of last year. We have heard the current and previous Ministers for Health tell us that they know it is bad and that they are working on it but when nothing is improving, that response is simply not good enough.

The Minister has decided to extend the target for waiting times for inpatient and day case treatment from eight to 18 months. Of course, this puts a better spin on the Government’s failure to reduce waiting lists or even keep them at the same unacceptable level. The record high of 601 patients on trolleys in January has not yet been addressed. Dr. Tony O’Connell, the HSE’s former head of acute hospitals and chairman of the task force on emergency departments, issued a warning months before the crisis. He referred to some 700 patients awaiting discharge, overcrowding and use of trolleys and said that from a quality and safety perspective, the situation was unacceptable. There are still hundreds of patients in hospital beds around Ireland who are waiting to be discharged but who cannot be because of a lack of step-down facilities, long-term care and nursing home beds. The number of such beds has been cut by 2,000 in the past few years.

The fair deal scheme delays have begun increasing again. The average wait time is almost three months and this could stretch to 18 to 20 weeks by the end of the year. Despite continued warnings in the past year about the need for additional resources for the nursing homes support scheme, the Minister has failed to provide adequate funding to relieve the situation and as a result, services right across the health system are being severely impacted. I am aware of many essential surgeries that have been delayed due, in part, to the failure to address emergency department overcrowding.

Despite all of these problems we still see the HSE making massive payouts to retiring staff, with four retiring consultants receiving lump-sum payments in excess of €300,000 last year. In Sinn Féin’s alternative budget we would have provided for an additional 1,000 nursing and midwifery posts. This would have gone some way towards returning nursing levels in emergency departments and on wards to the levels seen before the massive contraction of staff numbers overseen by Fine Gael and the Labour Party. A total of 2,724 nursing posts have been lost since the Government took office and we must not forget that this followed similarly large cuts by Fianna Fáil in government.

We need additional funding for step-down beds and extra nursing home places. The Gov- ernment has failed to solve the challenges facing the fair deal scheme despite ample time and opportunity. The Minister seems to forget that these are real people, real families and real heartbreaking situations. The €25 million extra provided for the scheme in the budget is likely to be now exhausted. The Government had no issue paying for private banking debt but not for a scheme that the HSE’s own chief executive describes as an Achilles’ heel.

My party has tabled the following amendment to the Private Members’ motion:

After “the health services are under funded” to insert the following paragraph:

the HSE structure put in place under the Fianna Fáil party and maintained by the

322 25 February 2015 present Government was flawed from its inception and is not fit for purpose and the long promised fundamental reform of the organisation has not yet occurred;.

This is to reflect the fact that despite being recognised by virtually everyone as necessary, no one has yet grasped the nettle and undertaken a root and branch reform of the structure of the HSE. I hope the Government and the Minister will finally take the necessary steps to adequately fund staff for emergency departments and to ensure the fair deal budget relates to demand rather than being simply capped. Is gá don rialtas cinntiú go bhfuil maoiniú leordhóthanach ar fáil do na seomraí éigeandála agus don scéim fair deal agus bunleasú á dhéanamh ar Fheidh- meannacht na Seirbhíse Sláinte.

It is telling that a consultant from the Saolta hospital group was on local radio in Donegal this morning saying that he will have to resign if sufficient support resources are not put in place. This is on foot of another consultant leaving the service recently. It is obvious that we have a massive crisis in our health system and in our acute hospital system in particular which this Government has failed to address properly. Táimid ag súil go dtógfaidh an Rialtas na moltaí ar bord atá déanta againn le gur féidir an cheist seo a leigheas mar ar deireadh thiar, is daoine daonna atá ag fulaingt leis na gceisteanna seo ar fad agus ní leor caint, is leor gníomh ar an gceist seo.

25/02/2015SS00300Senator John Gilroy: I welcome the Minister. There is no doubt that accident and emergency departments are facing significant challenges but it is rather bizarre to be lectured by Fi- anna Fáil on the issue. It is telling that when Senator Marc MacSharry spoke, he made reference to the current Minister for Health and his predecessors but stopped just before he came to the architect of the HSE, the current leader of Fianna Fáil. Deputy Martin placed an un-reformed structure, the HSE, on top of an ailing system without making any provision for improvements in the service and that is probably the major cause of our current problems. In that context, it is unpleasant and unpalatable to me to be lectured by Fianna Fáil Members today, whose party was the architect of the problem.

Senator Thomas Byrne made several references to stealth and tricks in his contribution. If the Senator is correct in what he is saying, the Minister is some tricky devil who was motivated by something other than public service to take the job-----

25/02/2015SS00400Senator Thomas Byrne: I gave several examples of the tricks-----

25/02/2015SS00500Senator John Gilroy: -----and that it is only tricks and stealth in which he is involved.

25/02/2015SS00600Senator Thomas Byrne: I gave the examples.

25/02/2015SS00700Senator John Gilroy: However, any reasonable person would say that the current Minister is a straight-talking, dedicated public servant with no agenda other than fixing the problems that we have. It would be ungenerous of Fianna Fáil not to acknowledge this. It would be ungenerous of anyone not to acknowledge it. The problems within the health service cannot be solved immediately, contrary to the simplistic suggestion put forward by Senator Marc MacSharry and his colleagues that we only need to do one or two things and the whole problem will be solved. Anyone who knows anything about the health service knows that there is a chain of care from the moment someone presents to the service until he or she leaves it. A reorganisation of the HSE is what was needed.

The accident and emergency departments are the gateways to other services. The problems 323 Seanad Éireann being presented at emergency departments are not, strictly speaking, problems of that department; they are problems of the entire chain of care. To solve the problems requires operational and political interventions at every level of the service, not just at accident and emergency level. If the Minister announced an additional 1,000 beds to solve the accident and emergency problem, in two months time those beds would be full and the problem would continue at the gateway.

Senator Trevor Ó Clochartaigh suggested that if we adopted the Sinn Féin alternative budget we would have a perfect health system. Of course, Sinn Féin’s perfect budget builds castles in the sky. Perhaps we could build accident and emergency departments in the sky too-----

25/02/2015SS00800Senator Trevor Ó Clochartaigh: We are in a nightmare scenario.

25/02/2015SS00900Senator John Gilroy: We need to deal with reality.

The first point to make, which has not been mentioned yet, is that political responsibility rests with the Minister for Health. He will be judged on his performance and how he handles not just the accident and emergency crisis but the myriad of other challenges, rather than crises, in the health system. The term “crisis” can be overwhelming and can lead to an inability to act but the Minister is not overwhelmed to the point of inactivity. He is doing what is required to be done.

We must examine the culture of delivery within the health service. To give an example, I train a couple of soccer teams and one Sunday morning just before Christmas, a young fellow went over on his knee. While driving him to the accident and emergency unit in the car, the symptoms with which he was presenting were quite obvious. He was in distress and it was clear that a cruciate ligament injury or something like that was what was wrong with him. While on the way there, he asked me what was going to happen when he went into the accident and emergency unit. I told him we would be obliged to wait at reception, would register and would go to the triage nurse. I told him we would then be called in, he would be taken for an X-ray and thereafter he would be given some sort of treatment after he had been diagnosed. This of course is exactly what came to pass except it took eight hours for it to happen on a Sunday morning. We queued at three different locations. What if an enhanced role was given to non-medical professionals in accident and emergency departments and throughout the services in order that, for instance, instead of seeing the triage nurse, the patient perhaps could have seen an advanced nurse practitioner who could have referred him directly to the X-ray department? Everyone knows that is what is required for minor injuries and limb injuries. In general, they are uncom- plicated and advanced nurse practitioners are trained up to a point that is at a similar level to most of the medics one meets in accident and emergency units. They are different professionals and have different specialties but ultimately, they are competent to perform these roles.

Although non-medical professionals are being introduced into the health service, there is much opposition from other professionals. While I do not wish to name any professional, everyone knows who I am talking about and there is a territoriality associated with it. When one refers to vested interests within the health service, it is automatically assumed that the vested interests lie within the trade union movement. While there undoubtedly is a vested interest in that regard, there also is a vested interest in respect of the other top administrators and consultants. The Minister is aware of this and while one may not wish to acknowledge it too widely, I worked in the health service for 30 years and it is clear to me. There also are many cultural difficulties facing us. 324 25 February 2015 In addition, were one to state the post-discharge solution of providing more step-down beds is the answer, the same problem would present as with the provision of more inpatient beds, which is that no matter how many nursing home beds one might provide, ultimately, they will be filled. My colleague, the Minister of State, Deputy Kathleen Lynch, did state she hopes this ultimately will be a demand-led scheme. While one can envisage the challenges in that regard, ultimately it probably is part of the package of solutions surrounding this issue. However, simply to lay the blame at the feet of our elderly population is both unfair and factually incorrect as there are several other issues at play. I refer to the possibility of giving a more enhanced role to the general practitioner, GP, service. I understand that the GP contract is causing much difficulty and perhaps more investment is also needed in this area. The GPs are the gatekeepers of the services and perhaps consideration should be given to how to better involve and integrate GP care into the accident and emergency and hospital services in order that the transition from one to the other is seamless. I could speak here for the rest of the evening about what I think is wrong with the Health Service Executive.

25/02/2015TT00200Acting Chairman (Senator Michael Mullins): Not this evening.

25/02/2015TT00300Senator John Gilroy: The Acting Chairman looked at me with despair on his face when he heard me say that. I understand the problem is complex and is not amenable to simple solutions. It is certainly not amenable to having money thrown at it, which is what Fianna Fáil did over the course of its tenure in government and Members have seen the results. It certainly did not cure the problem and probably made it even worse. I wish the Minister well in his job and in his determination to provide the country with a health service of which one can be proud.

25/02/2015TT00400Senator John Crown: Again, I welcome the Minister. He is a young man and about the same age as I was when I first became a consultant oncologist in Ireland’s medical service. I was full of enthusiasm and optimism and thought a problem was what one was here to fix, not something that made one go away wringing one’s hands, which is a common attitude in Ireland. I like to think I have managed to keep some of that enthusiasm although my youth has waned and I still look at problems that I try to fix and overcome. However, I must state I am a little weary now of one or two of them, and one about which I am most weary is the structure of the health system here, which is wholly irrational. Lincoln once famously stated, “A house divided against itself cannot stand” and I am afraid that our health service is a house that is divided against itself. It is one that I believe could be fixed and the only real impediment to fixing it is the will to do so.

I am in an awkward position because I agree with approximately 95% of the contents of the motion tabled by Fianna Fáil. In a number of terse bullet points, its Members here have pointed out eloquently and accurately many of the deficiencies within the system that must be fixed. As has been pointed out by others, I state this with no desire to be personally critical of anyone, the reality is that Fianna Fáil had many years in which to fix it but chose not to. For many years, Fianna Fáil-led Governments had a Minister for Health who came from a party that officially had no policy on health reform because its members stated the health system was too complicated and simply could not be fixed. I believe it can be fixed and I am not asking people to look at some pie-in-the-sky fantasy. I ask them to look at health systems that actually exist in countries that are similar to Ireland demographically, and on where they fit in terms of OECD wealth scales, etc. I acknowledge no system is without criticism but in such health systems, the torrent of criticism ours faces and which is largely deserved simply is not heard because there is a higher level of satisfaction with the systems. I do not wish this debate to turn into another in which Fianna Fáil criticises Fine Gael and vice versa and where the latter’s principal defence 325 Seanad Éireann in response to these charges is that Fianna Fáil could have fixed it. That is my job. I am not a member of either group and have been equally critical of both. The one Minister for Health up to now who I thought made a huge difference in fixing something was Deputy Michael Noonan. He is the one who deserves most of the credit for improvements that occurred in cancer care in Ireland. That is another day’s work and I will not go into it today.

We have had the great experiment and the two great hypotheses have been subjected to experimental trial. The first hypothesis was that what was needed to fix the health system was not to change the way in which it was funded but to change the way the administrators were organised. Since I came back, we have had a Department of Health, an Eastern Health Board, an Eastern Regional Health Authority, regional health authorities, ultimately a Health Service Executive and now hospital groups. I believe that none of these will make any difference because they do not deal with the core problem, which is the disconnect between reimbursement and efficient activity. This is what must be done if we are to get rid of the waiting list problem.

Without going into all the details, the waiting list problem is not comparable with any other country in the western world but is absolutely at the bottom of the scale. We have an unbeliev- able waiting list and once again I must tell the Minister, on the basis of evidence that has been presented to me and which I have discussed in this House with the Minister’s predecessor, the waiting lists may actually be worse than we know because there is a great degree of artifice in the manner in which the HSE and hospital outpatient clinics are now structuring who precisely is considered to be on a waiting list and at what time does a person actually become somebody who is subject to a waiting list. While it is not necessary to go into it all, there is something wrong with a system in which people are waiting two years for paediatric cardiology consultations or in which deaf children are waiting for a year and must strain to hear at the front of a class before they can get their hearing tested. There is something wrong where cataracts or orthopaedic surgery, which may not turn up very much in life expectancy tables but which have huge effects on quality of life, take so long and where people wait five or six days or a week in a hospital bed for a magnetic resonance imaging, MRI, scan because it suits the hospital to have them wait. This is because if one uses the single scanner more efficiently, thereby getting people to go through more quickly and if one has people working at night time, it will cost more money. The bed will be emptied faster but will not be emptied as it will be replaced by the next person who comes in off the list.

This is what happens when one has a disconnect between reimbursement and activity. If one looks at a league table based not on fluffy stuff like whether the hospital system has an ombudsman but on the core value of access to care, in all the scores that look at the various OECD countries, the countries that feature at the top of the list with boring regularity are those that follow the Bismarckian model of health care where there is a connect between activity and reimbursement. Those which are based on the Beveridge model of global budgeting and on that money being given in January with people being told to make it last until midnight on New Year’s Eve are the ones with the waiting lists. They are cheaper systems but one other piece of advice for the Minister is not to fall into the trap of thinking that spending money on health care is bad for the economy. He should think of the United States and Japan in the 1990s, when former President Clinton campaigned on trying to make America more competitive with Japan because Japan’s health care costs were so much lower. He failed and health care reform did not work at the time in the United States, although there has been a degree of health reform subsequently. Nevertheless, America’s economy went through the roof throughout the eight years of President Clinton’s rule while the Japanese economy tanked.

326 25 February 2015 The Minister should consider the countries that spend more than Ireland on health care. Are they failed states with failing economies? I am referring to Canada, Germany and Israel, which faces an entirely different set of challenges that gobble up its GDP. There are examples of countries which have been shown to make it work, such as Switzerland. We can and need to do this.

As for the second major experiment we did, the Minister has been first in terms of peer re- viewers who have looked at the experimental details and he has come to the correct conclusion. It was that there was something fundamentally wrong with the position regarding consultant contracts which were causing problems in the health service; therefore, we changed them. We appointed a whole group of younger consultants to, more or less, full-time public jobs with no distracting private commitment. The waiting lists, however, did not go down by one second. What is more, we found it harder to fix the jobs, a problem which the Minister is now addressing.

The problems are manifold and the challenges are great but the Minister is up to them. This is his chance to really put a stamp on the service, to be the Noël Browne of our era. He may not particularly like that accolade ideologically but I mean it in terms of somebody who left a big positive mark on the health system in his brief period as Minister. No one has been given a better opportunity to do this than the Minister. The tide is rising boats economically and, as the Minister said, the era of cuts is over.

I find myself in the strange position of agreeing with the Sinn Féin amendment to this motion because it correctly points out that the problems in the health service come from both sides of the House. There was a commitment made to reform the health services. Fiddling around the edges and introducing new bureaucracies will not fix this. We have to fundamentally reform and fix the system. I hope and believe the Minister is the man for the job.

25/02/2015UU00200Senator Eamonn Coghlan: I welcome the Minister. I have to admit I was somewhat per- turbed by the opening remarks of Senator Thomas Byrne. It was an unnecessary attack on the Minister, demanding answers and solutions while accusing him of having no health policy. He said it is the Minister’s job to keep people well. Senator Thomas Byrne is not in the Chamber now but I do not believe it is the Minister’s job to keep the people well or his responsibility to look after their health. Neither do I believe it is the doctors’, the nurses’ or the Government’s. Responsibility for looking after one’s health remains with oneself.

I notice the same health service issues are to the fore now that were there when I returned from the United States in the early 1990s. Personally, I cannot understand why. Senator John Crown referred to structures which seem to be the nucleus of the problem. There have been ten different health Ministers since the early 1990s but we are continually experiencing the same problems. The Minister inherited a poisoned chalice, a point made in the media when he took over the role. I certainly know he is not God. I do not even know if God can put this right. At this particular stage, after many years of trying, we need a miracle to get it in the right direction.

There has been a complete mismanagement of the health service, a feature of the last Gov- ernment which held office for 14 years. What did it do about it? Absolutely nothing. It led the economy from bust to boom and bust again. Unfortunately, the health service remained in a bust situation through that time.

Sarah Burke, in her 2009 article “Boom to Bust: Its Impact on Irish Health Policy and Health Services” in the Irish Journal of Public Policy, cited several reasons for the difficulties

327 Seanad Éireann experienced, particularly the population experiencing a baby boom and people living longer. From news reports yesterday, we see we will be facing into serious consequences in this regard for several years when the baby boomers pass their mid-60s. Sarah Burke stated, “Medical inflation has continued to rise alongside increased expectations and demands on health services.” She also stated the greatest failure of the last Government was that during the boom time in health, the budgetary allocation multiplied. However, lots of time and money was wasted on reform yet things got worse. Why? The answer is structures. She stated, “Between 2001 and 2010 there has been much time, effort and money spent on reforming the Irish health services, most evident in the establishment of the Health Service Executive, HSE, in 2005.” The HSE was in total disarray right from the beginning when it took many months even to appoint a chief executive. Many of the problems we are currently dealing with originate from this particular period. For instance, instead of prioritising increased front-line staff, medical care staff, nurses, doctors and consultants, 11 different health boards, over 50 hospitals and multiple other health and social care agencies were merged into one centralised unit but not one person lost his or her job. There were no changes to work practices. Roles were duplicated and, in the end, there was absolutely no difference in how the health care system was delivered. Sarah Burke said this was all done under the name of reform. What reform has taken place?

The last Government was accused of wrecking the economy. It also wrecked the health services. The Government is trying to fix the health services, just like it helped fix the economy and put it back on track. In December, the Minister convened a task force to find a long-term solution to overcrowding in accident and emergency departments, a welcome move. While attendances at accident and emergency departments increased by 3.1% for December, we cannot blame the Minister or the Government for overcrowding. What has the Minister done since? Up to 750 transitional care beds were funded by the Department. In addition, across the country hundreds of short-stay beds have been made available while arrangements are in place in the HSE to recruit front-line staff in Beaumont, Limerick, Drogheda and Naas hospitals. A communications campaign has been put in place to encourage more people to use minor injury and local injury units. This should help to relieve pressure on the emergency departments and allow patients to get treated more quickly.

Spending on health services runs into the billions of euro. Many years from now, this will come to trillions. This is money spent on sick people. We need to look at how we can nip this in the bud. Prevention is better than the cure. Today’s young children and adults must be educated from a young age to look after their health and well-being. In the long run, this will mean fewer people attending hospitals in the future.

25/02/2015UU00300Senator Mark Daly: I welcome the Minister. Depending on who is doing the number- crunching, approximately 1 million people go through accident and emergency departments every year. There are several main issues with accident and emergency departments from ambulances, patient processing, staffing and step-down beds. From my experience of dealing with the ambulance service, I know the situation nationwide is dire when response times for 500 emergency calls are longer than the times recommended by the HSE. This has consequences. People are dying in County Kerry because of their geographical position. More important, they are dying because of cuts to ambulance services. Before, two emergency ambulances were based in Killarney, one in Kenmare and one in Millstreet, which covered the east Kerry area. Now, there are just two ambulances covering the same area. That in turn means ambulances are pulled in from Dingle, Caherciveen, Tralee and Listowel to cover the gaps in the service in Kerry. It is death by geography.

328 25 February 2015 The lack of emergency ambulance cover means when paramedics do arrive to a patient, the patient has already deteriorated to such a degree that he or she will spend longer in an intensive care unit, hospital and the step-down care facility. In some cases, they may never leave hospital.

As the Minister knows, when a patient is suffering a heart attack, the longer it takes to put in the stent, the greater the likelihood the person will have an irreversible heart attack, will spend his days not being a productive member of society, or will die. We had such a case in Kerry where the Caherciveen ambulance was not available and nor was the Killarney ambulance. It was out on call with the result that the Kenmare ambulance had to travel one hour and 40 minutes to see this man in south Kerry. When he was seen, they called the coastguard helicopter. He stepped into the helicopter and said that it was not good. The 6 o’clock paramedic agreed with him and he died on the operating table in Cork. If he had been seen earlier and if the ambulance had been available, the outcome could have been different. As we do not have enough emergency ambulances, we have people dying or having irreversible effects on the health, including heart attacks and strokes. There is an ongoing review and I take on board the point that the previous Government was in charge. A system where an ambulance is sitting outside an accident and emergency room with the patient inside on a trolley waiting for two hours for someone to say they will take him in is beyond belief. It means, for example, that the ambulance is not available in its home county to bring stroke and heart attack victims to Cork, leaving the service devoid of cover in Kerry. The same situation applies around the country.

The Minister has an action plan for stepdown beds. With regard to the 700 beds occupied in hospitals and having them taken by people who should be in longstay care, there is an obvious loss of process. From the issue of the ambulance not being there to bring the critically ill patient to the hospital in order that they can get the treatment they need and do not have to go into long-term care to the fact that ambulances arrive and are not immediately released, the process is not as it should be. This has been the situation for decades. Paramedics tell me they wait for hours for the patient to be taken into accident and emergency units. That is a lot of equipment sitting there idle. It is not about money but about process and it can be fixed without throwing more money at the system.

Stepdown beds are about money. There are 20 beds in the Kenmare hospital available but we do not have the staff to take them from Cork University Hospital. Staff will be employed in the acute care hospital but not in community hospitals. Nursing homes are at full capacity. There are issues that can be solved by money but other issues must be solved by the processes currently in place, which are not working effectively. Tonight, 100 emergency ambulances are available around the country. If all 100 are out on call, no one wants to be the 101st victim of a car accident, a stroke or a heart attack because the ambulance will not be there when it is needed.

25/02/2015VV00200Senator Mary Moran: I welcome the Minister for a debate that is of the utmost importance. It is to the forefront of everyone’s mind. Like my colleagues, I deal with dozens of families and individuals weekly on a variety of topics but I mostly deal with housing and health care. I dealt with a number of people on a variety of issues ranging from surgery, waiting lists, hospital overcrowding and the filling of vacant consultant positions. I do not want to get into the political space, with one side blaming the other, but I agree with Senator John Gilroy when he said it was ironic that Fianna Fáil is bringing forward the motion when much of the problem was inherited by this Government from the previous one.

329 Seanad Éireann

25/02/2015VV00300Senator Thomas Byrne: That is lazy analysis.

25/02/2015VV00400Senator John Gilroy: It is true.

25/02/2015VV00500Senator Mary Moran: I refer specifically to County Louth, where a Fianna Fáil Minister said the hospital would not close on his watch. The hospital closed, or the service was greatly reduced, and everything moved to the so-called centre of excellence in Drogheda. We are now suffering from it, yet Fianna Fáil is acting high and mighty over it. We are not here to discuss that but to find some way to rectify the position, get over it and work together to see what can be done. People are suffering and dying because of the way it is structured. The INMO Trolley Watch data estimate 275 patients on trolleys in our emergency units, with 104 patients on trolleys, chairs, beds and beds in wards. This amounts to 429 people nationwide today.

The Trolley Watch figure in the emergency unit and the wards in Our Lady of Lourdes Hos- pital is 40, one of the highest in the country. I wish I could say this was the highest figure at the hospital this year but, unfortunately, it is not even the highest figure in the past week. On Monday last week, the INMO Trolley Watch calculated the number on trolleys at 50. This figure has not once dipped below 25 patients in the past week. As a result of the high number of patients on trolleys early last week, the INMO requested that the HSE take the hospital off-call for emergency ambulance calls. I make no apology for making it a local issue. I appreciate the recognition that there is a problem, particularly at Our Lady of Lourdes Hospital and I welcome the agreement to recruit an extra 88 nurses to help deal with the crisis but I wonder whether it will be enough to improve the situation for patients. This is a dangerous situation and it cannot continue for the people living in County Louth and the surrounding area who rely on the hospital to provide safe and compliant care, like the hospital in Dundalk. Day case procedures were cancelled because nurses had to be moved to Drogheda.

One of the first things I did when I became a Member of this House was to call for a paediatric orthopaedic surgeon in Our Lady of Lourdes Hospital. This was not in place almost four years ago. I went through hell and back trying to get an orthopaedic paediatric surgeon, yet we do not have one. I keep hearing that applications have been advertised. Sitting in the orthopaedic clinic any day of the week one can see the numbers waiting for treatment from counties Louth, Meath and Monaghan. I have spoken to orthopaedic surgeons and other hospitals who report that babies that need hip operations must wait over one year before getting into the hospitals in Dublin. The surgery required is then greater.

I am not attacking the Minister, who has probably the most difficult job in the Oireachtas. We must see how we can remedy this dysfunction. How can we make sure we provide safe working conditions for medical staff and patients? We cannot expect patients, some of whom are extremely ill, to focus on recovery or treatment while lying on a hospital trolley or in a hallway. We certainly cannot expect our medical staff to work in such a dangerous work environment as has developed in Drogheda. I regret saying that and it is through no fault of the excellent front-line staff in Our Lady of Lourdes Hospital. I commend them for their dedication to their patients and their work, which astounds me.

In addition to the 88 additional nursing posts to be recruited for Our Lady of Lourdes Hos- pital, a number of measures have been introduced to deal with immediate problems nationwide, including delayed discharges. These include the introduction of 900 transitional care beds in private nursing homes; the provision of 300 overflow beds in acute hospitals; the number of nurses employed by the public health service to increase by at least 500; and additional funding 330 25 February 2015 of €3 million in December and €25 million in 2015. As evidenced by this, we have experienced progress in increasing resources and seeking solutions to the matters outlined in the motion, but will it be enough? We need not only to address overcrowding in hospitals, waiting times and staffing but also the supports available when patients leave hospital, that is, the community supports that allow them to receive treatment or recover at home or in another facility. We need to examine this issue. We cannot address the issues in hospitals without addressing and properly resourcing supports in the community. We cannot only address the immediate and obvious issue at hand in Our Lady of Lourdes Hospital, as we also need to consider the other supports to create a long-term solution. We all have anecdotes and could all contribute for hours outlining a broken system, but there are areas that need particular attention such as waiting lists. It is unacceptable that people must wait more than 18 months for a cardiac or neurology appointment.

25/02/2015WW00200Senator Catherine Noone: I welcome the Minister. The Government, as I do, fully acknowledges the difficulties with overcrowding in accident and emergency departments and the problem this causes for patients and families and staff who are doing their utmost to provide safe, quality care in extremely challenging circumstances. It is my understanding optimum patient care and patient safety at all times remains a priority of the Minister and the Government. A wide ranging set of actions has been put in place by the HSE to achieve improvements which it is important to highlight. They include specific measures which have been put in place to address hospital waiting lists more efficiently and effectively through initiatives covering colonoscopies, special funding for scoliosis and ophthalmology services, additional consultations and the extension of ultrasound access to additional primary care sites.

Actions taken to date to address overcrowding in accident and emergency department include the opening of additional overflow areas; providing for additional diagnoses and strengthening discharge planning with a range of measures, including 900 transitional care beds funded in private nursing homes to assist the discharge of patients from acute hospitals; the opening of 173 short stay public beds across the country for three months; agreement on additional nursing posts; the opening up of 300 overflow beds in acute hospitals; and the introduction of additional community interventions introduced in Naas and Drogheda, with 11 such teams now in operation. This year the number of nurses directly employed in the public service will increase by at least 500, which was a welcome announcement recently made by the Minister.

The Minister convened an emergency task force last year to find long-term solutions to overcrowding by providing for an additional focus on dealing with the challenges presented by trolley waits. The HSE is finalising an action plan under the auspices of the task force to be implemented immediately to specifically address emergency department-related issues across hospitals, social care and broader community services with a view to achieving a significant reduction in trolley waits this year. I hope this will prove successful.

Actions being taken by the HSE to address waiting lists include observations on the national waiting list protocol, prioritising day of surgery admission where clinically appropriate, provision of new patient care pathways such as medical assessment, minor and local injury units and urgent care centres and provision of care in non-hospital settings to support the efficient use of hospital resources. Waiting list targets have been changed and the HSE is finalising an action plan for waiting lists with a focus on long waiters such that by mid-year nobody will wait longer than 18 months for inpatient and day case treatment or an outpatient appointment, with a further reduction to 12 months by the end of the year. The HSE has committed in its national service plan for 2015 to the publication of waiting lists online at consultant and specialty level and aims to reduce waiting lists by way of process redesign, consolidating further the work of 331 Seanad Éireann the special delivery unit to date.

The Government has made provision for a welcome increase in the total financial resources available to the HSE this year, the first such increase in seven years. The HSE knows that there is an urgent service requirement to recruit the necessary staff, including additional nurses, doctors and therapists. The Government provided additional funding of €3 million last December and €25 million in 2015 to address delayed discharges and this funding is targeted at hospital and community services which can enable initiatives to address specific needs of delayed discharge patients positively and, thereby, aims to improve timelines for admission from emergency departments and reduce waiting lists.

The review of the nursing home support scheme which is under way and due to be completed shortly will consider the future funding and sustainability of the scheme, as well as how community and residential services are balanced. We all remain hopeful the measures that have been implemented in the recent past will have the effect of improving health services and reducing waiting lists.

I would like to highlight the hypocrisy of Fianna Fáil, given its failure to make proposals on health in its alternative budget for 2015 and not least that it created the HSE which, as previous speakers said, is a basket case. The structural problems in the organisation are difficult for any Minister, but despite serious work on the part of Ministers, one wonders whether those working in the HSE are motivated to improve the system at all, given the internal politics. Contrary to comments made by the Opposition, I have every confidence that the Minister is committed to and passionate about the health service. His only motivation is to make a genuine effort to improve health services. I have every confidence that he will be successful in both the short and long term.

25/02/2015WW00300Minister for Health (Deputy Leo Varadkar): I support the Government amendment and oppose the motion. Senators Thomas Bryne and Marc MacSharry asked about the actions that had been taken. It is possible to explain what is going on, analyse it and act at the same time. Fianna Fáil Members may, however, find it impossible to explain, analyse and act at the same time, but there are those of us on this side of the House who do not think it is difficult to do and that they are not mutually exclusive.

With regard to actions, 900 transitional care beds are being funded in private nursing homes, 500 in January and a further 400 in February, to assist patients waiting on the fair deal scheme to be discharged from hospital and put in transitional care; 173 short stay public beds are being opened across the country for a three month period - they should all be opened by the end of the month; there has been agreement on additional nursing posts, with at least 500 additional nurses directly employed in the public health service this year - in addition, there will also be mental health posts; I am double counting in this regard; up to 300 overflow beds have been opened in acute hospitals; and additional community intervention teams have been introduced in Naas and Drogheda. I also convened the emergency department task force and the HSE is finalising an action plan.

We are going through a difficult period in the health service. There were four years of cutbacks under Fianna Fáil and three years of budget freezes under the Government as a consequence of the recession that those proposing the motion helped to cause. That has left its mark and done enormous damage to the health service. In 2015, for the first time in seven years, there has been a modest budget increase, of approximately €150 million. However, we still spend 332 25 February 2015 approximately €1.5 billion less than we did seven years ago and we have approximately 15,000 fewer staff. Even with considerable improvements in efficiencies during the past seven years, rising demand has created enormous problems for us. Those problems are reflected in emergency department overcrowding in some hospitals and excessive waiting times for many patients.

It is important to recall some of the good things that are happening in health. Sometimes, in these debates one can become despondent and begin to believe nothing ever changes or im- proves. One of the many things I did today was to visit the National Maternity Hospital, Holles Street where I had the pleasure of opening the new neonatal intensive care unit, NICU, which is a major improvement on the one I remember from when I worked there seven or eight years ago. It was great to see it. Maybe 36 years ago, when I was born, 90% of the children in that NICU would have died, whereas now 80% or 90% survive. Let us allow ourselves, now and again, to recall some of the good things in health.

We have a very good capital programme under way. At long last, planning permission for the children’s hospital will be lodged within months, before the summer recess. I hope, with the agreement of An Bord Pleanála, we can start work on it before the country goes to the polls. Work will begin on the new forensic mental health campus in Portrane, allowing us to close the Central Mental Hospital in Dundrum. We have been promising it forever, and now it will happen. We are providing one primary care centre per month and the National Maternity Hospital will move to St. Vincent’s University Hospital. The planning application will be submitted this year.

We are succeeding in our efforts to make health insurance more affordable. The numbers of people who have insurance increased in the last two quarters of last year. I expect a big increase in the first quarter of this year and a further increase next month with long-term community rat- ing. The first step in my objective of making health insurance universal is to make it affordable. We must always have regard to this.

Senator Mark Daly mentioned ambulance services. Only last week I announced that we would hire 50 additional paramedics in the west to improve services there. Not long ago, an ambulance was just a vehicle that took a person to hospital. It is no longer like that. Ambu- lances are staffed by emergency medical technicians, EMTs, paramedics and advanced paramedics. If an ambulance does not reach a person, the rapid response vehicle does and care begins immediately, long before one reaches hospital. We also have the air ambulance, which did not operate before the Government. We have 100 community first responders, and we need many more of them. DELTA and ECHO times are improving, despite how busy it has been during the past few months. We are very close to meeting the DELTA targets, although we are not quite there for ECHO yet. Despite the fact that December was the busiest month ever for ambulances, turnaround times at hospitals improved. This is a tribute to ambulance service and staff. The budget is not being cut this year but increased by €5 million. It is important that people understand that our ambulances work on the basis of dynamic deployment. We no longer have the idea that an ambulance is just for a particular area, just as taxis no longer operate from taxi ranks, as they used to, but use systems such as Hailo and Uber. Dynamic deployment is the best way to manage a fleet. I already mentioned recruitment, the 500 additional nurses and the 30 consultant posts just advertised.

Emergency department overcrowding is not a new problem and is not unique to Ireland. Many of the protocols we use come from Australia and America where it is also a problem. It is also a problem in Northern Ireland. It is a chronic problem which turns into a crisis whenever 333 Seanad Éireann there is a surge of patients or significant delays in discharges at the other end. The Government acknowledges that the problem of overcrowding is serious, real and cannot continue. While surges will occur from time to time, the difficulty in Ireland is that it is a year-round phenomenon and extensive time spent waiting for admission on a trolley is a patient safety issue. Some people were shocked by my admission today that delayed treatment can result in increased morbidity and mortality. To me, it was a statement of the obvious. Since everybody knows it is a fact, why deny it? Aside from the discomfort and loss of privacy and dignity, it is a patient safety risk, particularly for the elderly. Senator Moran received the INMO figures, which are done at 8 a.m. The more up-to-date figures show that as of 2 p.m. today there were 279 patients on trolleys in emergency departments and on wards, of whom 198 had been on trolleys for more than nine hours. The figure will continue to fall throughout the day but will increase overnight.

25/02/2015XX00200Senator Thomas Byrne: What about Our Lady of Lourdes Hospital?

25/02/2015XX00300Deputy Leo Varadkar: There is great variation among the hospitals. There are four hospitals in which nobody is waiting for more than nine hours on a trolley. They are St. James’s, Kerry, Navan and Cavan hospitals. There are others hospitals in which there is very severe overcrowding, such as Beaumont Hospital where more than 24 patients have been on trolleys for more than nine hours and there is a similar situation in Our Lady of Lourdes Hospital. I hope the provision of 24 additional beds this summer through the modular development will help matters in Our Lady of Lourdes Hospital. However, as Senator John Gilroy accurately pointed out, providing more beds does not necessarily reduce the number of trolleys.

25/02/2015XX00400Senator Thomas Byrne: The INMO is stating the situation tonight is unprecedented in Our Lady of Lourdes Hospital.

25/02/2015XX00500Deputy Leo Varadkar: It requires much more than that. The reasons for overcrowding vary. Some hospitals put it down to problems with delayed discharges, others to a difficulty recruiting and retaining senior medical staff or a lack of acute beds. Experience has taught us that it is not just a matter of delayed discharges, staffing or skill levels, hospital avoidance, patient flow, overall management or advanced planning. It is about all of these factors and more. An integrated approach implementing changes in how we deliver health care is required and simple actions such as ensuring discharges take place at weekends and working with primary community care providers to deploy home care resources are essential if we are to get patients who need care into hospital beds and get those who have completed their treatment out safely. Since the current period of sustained pressure began, we have approached the issue with a hall- mark of transparency and honesty. The Minister of State, Deputy Kathleen Lynch, and I have spoken regularly and at length about the numbers affected and we have not shied away from admitting this cannot be fixed instantly. How could it be? The infrastructural and resource constraints have built up over a number of years of austerity, and repairing the system will take time too. While sticking plasters are all right for minor grazes, deep wounds inflicted by previous Administrations require extensive reconstruction if we are to build a system that can respond to future need.

In the meantime, it is important to reassure people that all hospitals can and do manage patient flow and safety in a way that supports and ensures the delivery of optimum patient care. They are supported in this by the HSE, which plans appropriate ongoing actions by teleconference seven days a week. As has been outlined, an additional €3 million has been provided in the Supplementary Estimates of 2014 and €25 million this year to address delayed discharges. I have already pointed out how it has been deployed. In the past couple of hours, I received 334 25 February 2015 figures that show that the number of delayed discharges is down to 705 from a peak of 850 a few months ago. At least it is going in the right direction, albeit there is a long way to go.

The HSE has put in place arrangements to recruit front-line staff where it has been established that there is an urgent service requirement. This has led the HSE to enhance the use of smaller hospitals such as Louth County, Nenagh, Ennis and Bantry hospitals for patients who require non-complex care after they have been medically stabilised. The extension of the community intervention teams, comprising nurses who go into homes and nursing homes to provide intravenous therapy, IVs, and other treatments, has been introduced in Naas and Drogheda and it has allowed 2,500 people to avoid hospital admission. I want this to be expanded further. All these additional actions underline the fact that the solution does not lie solely in the realm of acute hospitals, rather, a multidisciplinary approach is essential to care for patients appropriately.

We need to do much more. The Minister of State, Deputy Kathleen Lynch, and I have expressed time and again our view that social supports such as the fair deal, home help and home care packages should be demand-led, which is a fancy way of saying it should be a right or an entitlement in the same way as a pension, welfare benefit or school place. If a person qualifies for the support, it should be provided, not rationed. Matters such as this require the approval of the Government as a whole and I am exploring ways we can achieve it, whether by reprioritis- ing in my budget or bringing forward spending planned for later in the year. We cannot ignore it.

Inevitably, the cancellation of elective surgery to help manage the need for immediate emergency or trauma care will affect waiting times where it is necessary to prioritise cancer or other urgent cases. The HSE assures me this is being done. The challenge is to minimise the need for cancellation at short notice and to manage the impact of such cancellations effectively. Realisti- cally, I do not envisage significant improvements in elective waiting times in the early part of this year. However, based on the high priority attached to this area in the HSE service plan, the provision for an additional 20,000 day cases this year and the first overall increase in the HSE budget in seven years, I expect we will turn the corner on that later in 2015.

The movement of care and treatment from inpatient to day case and from day case to outpatient departments is very important. There is a commitment in the national service plan to pilot the provision of additional minor surgery services in primary care centres to allow GPs to do more minor surgery, I hope reducing some of the waiting lists. My Department is also working with the HSE to develop a plan to address waiting lists with a focus on very long waiters such that by mid-year the maximum waiting time will be no longer than 18 months for inpatient services, day case treatment or outpatient appointments. A further reduction will bring the maximum waiting time to no greater than 15 months by year end. This will involve both pro- ductivity improvement and rigorous waiting list management. This does not mean the existing targets have been changed. The 20 months target for children, the eight month target and the 12 month target remain and will continue to be reported on in the HSE PAR on a monthly basis. We are setting maximum waiting times which is different.

25/02/2015YY00200Senator Thomas Byrne: Can children be subjected to the maximum waiting time? Are they part of that or is the 20-week target completely separate?

25/02/2015YY00300Deputy Leo Varadkar: The target remains but I need to be very frank about this. There are a few sub-specialties where it is going to be very difficult. It is not just a matter of money 335 Seanad Éireann in those cases, but one of specialists and theatre time.

25/02/2015YY00400Senator Thomas Byrne: In other words, the 20-week target is not completely separate from the 18-month maximum.

25/02/2015YY00500Deputy Leo Varadkar: The 20-week target remains. Hospitals must adhere to chronologi- cal scheduling and observation of guidelines drawn up by the national clinical programmes as well as improving efficiency in the management of referrals and reducing the number of unnecessary return appointments. Rather than the current situation whereby a consultant or his or her staff sees one new patient for every 2.6 repeat appointments, the HSE has set a target to achieve a ratio of one new appointment for every two reviews. That will free up thousands of appointment times for new patients without any additional resources being required. Similarly, with the assistance and guidance of the STU and the NTPF, poorly maintained waiting lists are gradually becoming a thing of the past. I refer to the old-fashioned waiting lists in boxes; that is charts in boxes rather than registers. Multiple referrals of individual patients by GPs are being tackled.

I expect all hospitals and clinicians to do everything they can to reduce waiting times within their own hospitals and specialties and not to allow overall patient waiting times to build up in order that patients become urgent cases where this can be avoided. A new referral system which can speed up and streamline the referral cycle is being piloted and specifications for e- referral systems incorporating protocols and standards from the STU and clinical programmes are in development. This will allow the quality of referrals to improve. These are short-term targets which do not detract from the achievement in the medium term and, where it is possible this year, the retention of the Government’s original waiting targets. Consultants are also being provided with quality audited data to allow them to benchmark themselves against best practice standards nationally and internationally. In turn, this will promote further efficiencies in the provision of care.

The NTPF and HSE will continue to publish monthly waiting list figures and ensure that we can all monitor the benefit of those efficiencies through the gradual reduction of waiting lists and waiting times. The HSE has also made provision where possible to address services where there are particular challenges. For example, funding has been allocated in the HSE service plan for 2015 for the appointment of an orthopaedic surgeon, an anaesthetist and support staff at Crumlin in recognition of the pressures relating to surgery for scoliosis. This will maximise the use of the available theatre sessions in the hospital. The provision of funding for additional funding and support staff is expected to allow an additional 25 cases to take place in 2015. That is roughly an increase of 50% on the number of cases that took place last year. That is part of a total of €5 million made available for the overall development of the orthopaedic service infrastructure nationally. A sum of €1 million has also been provided for a paediatric ophthalmic waiting list initiative and a colonoscopy initiative is under way to reduce waiting lists in that regard.

Picking up on the remarks of Senator Colm Burke on GP access to diagnostics, which is an enormous problem, I note that it is one of the most prevalent criticisms heard in the past few years. This year, the HSE is implementing a pilot project which will provide GPs with direct access to ultrasound at approximately eight primary care centres across the south and west with the aim of addressing existing GP referrals to ultrasound in those areas. It will mean that GPs can refer patients electronically to the preferred provider who will see urgent patients within five working days and non-urgent patients within ten working days, thus negating the need for 336 25 February 2015 referral to outpatient departments or hospitals in the first place.

As Senator Eamonn Coghlan eloquently pointed out, the long-term solutions must involve public health and a shift from the worsening ill health of our population to greater wellbe- ing through societal change supported by the Healthy Ireland initiatives on obesity, smoking, alcohol and greater physical activity. Among the things we will see happen this year is the publication of the first Healthy Ireland survey. This will be the first snapshot of our nation’s health since 2007. The survey will be repeated on an annual basis. I have sought and received approval from the Government to introduce new legislation on alcohol. The Minister for Chil- dren and Youth Affairs, Deputy James Reilly, is pressing ahead with legislation on tobacco plain packaging and I will also be bringing forward specific legislation on obesity, specifically calorie posting and workplace plans.

The motion is a Fianna Fáil one. I point out once again that Fianna Fáil remains a party with no policy on health whatsoever. I can only echo the comments of Deputies Éamon Ó Cuív and Michael McGrath who pointed out that Fianna Fáil should concentrate more on its policy development. I agree. In the alternative budget put forward by Fianna Fáil only a few months ago, there was less money provided for health than was provided by the Government.

25/02/2015YY00600Senator Thomas Byrne: That included last year’s bailout.

25/02/2015YY00700Deputy Leo Varadkar: However, now Fianna Fáil says it is underfunded. It certainly did not think so last year. It shows how much things can change dynamically. I accept that Deputy Micheál Martin did some very good work with the smoking ban as Minister for Health, but it is difficult to take some of the shrill criticisms he makes sometimes given that he should know how difficult health is. Of course, he is the former Minister who promised to abolish waiting lists within two years but failed miserably. He is also the former Minister who established the HSE in a disastrous, ham-fisted manner, establishing a new bureaucracy on top of bureaucracies that still exist even now. Even now, there are still nine payroll systems in the HSE. That was the worst reform in the books when it comes to health. When he was Minister, they did not count the trolleys at all. However, newspaper reports at the time show that children waited six years for appointments and in some cases patients were treated in ambulances and car parks one winter. He needs to bear that in mind a little better.

While Sinn Féin makes promises to hire additional nurses and health care staff in its policy documents here, in Northern Ireland, where it is actually in coalition, it has signed up to reducing the number of public servants by 20,000, which would be the equivalent of 60,000 in this jurisdiction. It has also signed up to a spending freeze in health and denied health staff in the North their promised pay rises. In addition, it is closing minor injury units across the province. A little bit of realism would be helpful there too.

25/02/2015YY00800Senator Trevor Ó Clochartaigh: We have learned our economics from Fine Gael and the Conservative Party.

25/02/2015YY00900Deputy Leo Varadkar: Since December, we have done everything possible to alleviate the current problems in health. More than 1,000 beds have been reopened or freed up but the demand for health care created by our rising and aging population means that the service is still struggling to meet that demand. While the actions we have taken may have alleviated the pressure temporarily, they are not a sustainable or appropriately planned approach and further demands will arise in 2015, including over the coming winter. That is why we must return to

337 Seanad Éireann planned service levels as soon as we can, but only when the safety of patients is no longer at risk of being compromised.

I am absolutely determined that there should be a continuing focus on emergency department overcrowding and a renewed focus on making sure that the longest waiters get their appointments, scans and operations. It will be necessary for clinicians and administrative management to work hard together to implement changes in processes as well as in respect of day-to-day service delivery to solve this problem. None of these things can be done quickly and none can be done without additional cost, at least initially. However, it can be done and I will do my best to drive it forward. Ireland should be a country in which one can grow old with dignity. The long trolley waits which have dogged previous Governments as well as our own should be consigned to history. I commend the amendment and reject the motion.

25/02/2015YY01000Senator Thomas Byrne: I thank the Minister for his patience and for staying here. It is appreciated as I would have understood if he had to put his Minister of State in for a while as Our Lady of Lourdes in Drogheda is facing an unprecedented crisis.

25/02/2015YY01100Senator John Gilroy: Is the Senator saying he should go up there himself now?

25/02/2015YY01200Senator Thomas Byrne: I am not saying that and I am not saying he should leave. I am saying I would have understood. I do not want the Minister in a hospital. The last thing hospitals need is to have politicians floating around. The reality is that there are 30 admitted patients there according to the INMO. There should be 14 nurses working tonight, but I understand from the INMO that only nine are rostered and the agencies cannot provide extra staff. The Minister stated there was no one waiting excessively in Our Lady’s Hospital in Navan. I attended its accident and emergency department a year and a half ago and was waiting for half an hour.

In some areas, the problem is that people do not know what different hospitals do. If someone from Louth or Meath lives close to Drogheda, there is an inclination to assume that the hospital there will handle something. Many people do not know what Our Lady’s Hospital in Navan, which effectively has a full accident and emergency unit except for some patients, or the hospital in Dundalk do. For example, people from north County Meath live closer to Dundalk than they do to Navan. It is a serious problem, but not enough is being done to address it. Tell people what services are available in each hospital and where they should go. The same applies in the case of Blanchardstown. Should people attend it or Navan if they live in the Dunshaugh- lin-Dunboyne area? My local area has been at the centre of health politics for a long time.

We must follow up on the solution with the current Minister, as the former Minister, Deputy James Reilly, provided no news. Before the last election, Fine Gael made a specific promise to have the hospital built before the next election. The Minister can read all about it because I raised the matter with his predecessor a number of times, but he denied all knowledge of it. The Fine Gael Party made a political promise, signed by its five candidates in the general election, to build a hospital within five years. Not only that, but Fine Gael had already started the negotiations with a private sector developer which would undertake the project on a public-private partnership basis. It was madness. It was main news in the newspaper at the time, but nothing has happened. People voted for this Government because of political promises like that one that were made during a crisis that is still ongoing.

It is okay for Senator Mary Moran because the public blamed Fianna Fáil at the last elec-

338 25 February 2015 tion for the problems. There is no doubt about that. However, it is being claimed that those problems are connected to the four-year delay since-----

25/02/2015ZZ00200Senator Mary Moran: Of course, they are.

25/02/2015ZZ00300Senator Thomas Byrne: -----in respect of the lack of orthopaedic and paediatric services after that man retired.

25/02/2015ZZ00400Senator Colm Burke: There were 250,000 more people unemployed.

25/02/2015ZZ00500Senator Thomas Byrne: The Government can sit back and relax because it is all Fianna Fáil’s fault. That election was over four years ago.

25/02/2015ZZ00600Senator Mary Moran: No, that is not what I said. I said-----

25/02/2015ZZ00700An Cathaoirleach: Senator Thomas Byrne to continue, without interruption.

25/02/2015ZZ00800Senator Thomas Byrne: It is an easy way of abdicating responsibility and asking what the Government can do because its hands are tied.

25/02/2015ZZ00900Senator John Gilroy: We are just pointing out-----

25/02/2015ZZ01000Senator Mary Moran: It is a statement of fact.

25/02/2015ZZ01100Senator Thomas Byrne: Today, the former Minister for Justice and Equality, Deputy Alan Shatter, complained that the Minister for Health was pretending about something. On the questions of targets and maximum waiting times, there are strong hints of pretence. What is a target? What is a maximum waiting time? How do they relate? There is no clarity. In fact, after parsing the Minister’s speech and the motion, there is currently no maximum waiting time or target. The Minister stated the target for a maximum waiting time of 18 months, which is outrageous and goes far beyond what was committed to after the Government entered into power, did not apply. According to the Government’s motion, it will be introduced in the middle of this year. That target has been extended. People are getting sorer, suffering and paying more for medication while they wait.

25/02/2015ZZ01200Senator Colm Burke: When the Senator’s Government had money-----

25/02/2015ZZ01300Senator Thomas Byrne: Of course, it is all someone else’s fault from four years ago. The Government entered into office with specific commitments on universal health insurance, which was dropped by the current Minister last summer but has been resurrected in the light of the upcoming general election. The former Minister, Deputy James Reilly, stated we would need two terms to do it but little has been done.

25/02/2015ZZ01400Senator John Gilroy: He said that before the general election. He acknowledged that it would take two terms.

25/02/2015ZZ01500An Cathaoirleach: Senator Thomas Byrne to continue, without interruption.

25/02/2015ZZ01600Senator John Gilroy: The Senator has mentioned parsing statements. He is parsing the facts.

25/02/2015ZZ01700Senator Thomas Byrne: The establishment of the HSE did not even take that length of time. The period of two terms was just an excuse for the Government to do very little. It is the 339 Seanad Éireann Minister’s Government that has no health policy. That is frightening. The Minister is crisis managing day in, day out, analysing and stating the obvious. There is no problem in that regard, as he is a good man at stating the obvious. It is necessary. Where is the vision? Where is this health service going? When will the child who needs grommets, whose mother contacted me and who has been waiting since last April with a 20-week target, be given an appointment? When will that mother have to stop buying medication and be relieved of that financial pressure? Her family and many others around the country are under financial pressure and individuals are in serious pain. It is about time that we had a vision. It is about time that we told the people where we are going.

Amendment put:

The Seanad divided: Tá, 24; Níl, 17. Tá Níl Bacik, Ivana. Barrett, Sean D. Brennan, Terry. Byrne, Thomas. Burke, Colm. Crown, John. Coghlan, Eamonn. Cullinane, David. Coghlan, Paul. Daly, Mark. Comiskey, Michael. Healy Eames, Fidelma. Conway, Martin. Heffernan, James. Cummins, Maurice. Leyden, Terry. D’Arcy, Jim. MacSharry, Marc. D’Arcy, Michael. Mooney, Paschal. Gilroy, John. Ó Clochartaigh, Trevor. Hayden, Aideen. Ó Domhnaill, Brian. Higgins, Lorraine. O’Sullivan, Ned. Keane, Cáit. Power, Averil. Moloney, Marie. Reilly, Kathryn. Moran, Mary. White, Mary M. Mulcahy, Tony. Wilson, Diarmuid. Mullins, Michael. Naughton, Hildegarde. Noone, Catherine. O’Keeffe, Susan. O’Neill, Pat. Sheahan, Tom. van Turnhout, Jillian.

Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.

Amendment declared carried. 340 25 February 2015

Amendment No. 1 not moved.

Question put: “That the motion, as amended, be agreed to.”

Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.

Question declared carried.

25/02/2015AAA00200An Cathaoirleach: When is it proposed to sit again?

25/02/2015AAA00300Senator Maurice Cummins: Ar 10.30 maidin amárach.

341 Seanad Éireann The Seanad adjourned at 7.10 p.m. until 10.30 a.m. on Thursday, 26 February 2015.

342